Last reviewed 30 July 2014
John Fowler writes on the implementation of Part 3 of Children and Families Act 2014 and the impact on children and young people in England.
Part 3 of the Children and Families Act 2014 introduces the new system of assessing and meeting the needs of children and young people with special educational needs (SEN) or disabilities. The statements of SEN made under the Education Act 1996 will be replaced by education, health and care (EHC) plans. Young people will be able to continue with, if required, an EHC plan until they leave education or training, or reach the age of 25.
The transition — principles
The Department for Education’s (DfE’s) aim for the transition is that “all children and young people with SEN” will “benefit from the new SEN and disability system as soon as possible… Local authorities should aim to make the new arrangements available to all children and young people as quickly as they are able to. This must be by 1 April 2018 at the latest. In advance of that date, local authorities must ensure that children and young people who currently receive support as a result of a statement are transferred to the new SEN and disability system in accordance with the transfer review process”.
For young people who are in the further education and skills sector, the aim is that those with a Learning Disability Assessment (LDA) should transfer to the new system at an earlier date: 1 September 2014.
The local authority transition plan
The Government has asked all local authorities to publish a transition plan by 1 September 2014. The plan should be drawn up following consultation with “young people with SEN and the parents of children with SEN, as well as organisations such as schools, colleges and health organisations that will be involved in transferring children and young people to the new system”.
The plan should report on the consultation and state:
the number of children and young people with statements (and young people being supported by an LDA) who will be transferred to the new system each year
the order in which children and young people will be transferred
how parents, children and young people and their educational institutions will be made aware of the transfer process
the details of the transfer review process
sources of independent SEN information and advice
who can answer queries about the local transition plan.
New referral for assessment on or after 1 September 2014
All new referrals for assessment (or reassessment) of a child or young person’s needs made on or after 1 September 2014 must be done under the 2014 Act.
Assessment and reassessment in progress on 1 September 2014
Where the local authority is considering a request for an assessment or reassessment (where the assessment could lead to a SEN statement) on 1 September 2014, then it must consider the request under the 1996 Act legislation. The local authority, with the agreement of the parent of a child, or young person, can decide to treat the request as being made under the 2014 Act.
Where the assessment or reassessment for a statement is in progress on 1 September 2014, it must continue under the 1996 legislation. Local authorities are advised to conduct the assessment with a view to meeting the requirements of the 2014 legislation. “This will ensure children and young people benefit from the new system as soon as possible, and help reduce the burden on families and local authorities of needing to conduct ‘transfer reviews’ for these children and young people later.”
If the ongoing assessment is treated as an EHC needs assessment, assessments already undertaken must not be repeated. Where an EHC plan is needed, it must be issued within 26 weeks of the original request (although exceptions apply).
Statements in place on 1 September 2014
The Government hopes that local authorities will convert statements to EHC plans, if appropriate, as soon as possible, and in any event by 1 April 2018. Until this date, unless the local authority undertakes a transfer review (see below) to the new arrangements, the 1996 Act arrangements apply. Parents do not have a right to request a re-assessment under the 2014 Act during the transition period. However, local authorities can choose to do a re-assessment, either because of a parental request or because the child’s or young person’s needs have changed, under the 2014 Act by initiating a transfer review.
During the transition period, parents of children with statements can appeal to the First-tier Tribunal (SEN and Disability) under the 1996 Act (and where a decision is made not to carry out an assessment) up to the point where they are notified that the transfer review has started. The First-tier Tribunal will have the power to decide that although an appeal was made under the 1996 Act, the local authority must carry out the decision under the 2014 Act legislation. No new appeals to the First-tier Tribunal under the 1996 Act can be registered after 1 October 2017.
Statements under the 1996 Act will be converted to EHC plans following a transfer review. A priority must be given to transferring young people at the significant Year 9 review, and on transfer to a new phase of education, particularly on transfer to a new school. However, “in order not to overwhelm the new system, in 2014/15 local authorities will be able to consider whether to transfer children in Year 6 to EHC plans, but must take into account the wishes of families. Later transition may make for a more stable situation for children whose secondary provision has already been agreed”.
In the academic year in which the transfer takes place, the transfer review will replace the annual review which must be completed within 12 months of the last annual review (or the making of the statement) although exceptions apply. The transfer review for young people transferring from secondary schools to post-16 education on 1 September 2015 must be completed by 31 May 2015, and 31 March in subsequent years. Where a child is otherwise transferring between schools, the review must be completed by 15 February. And all transfers must be completed by 1 April 2018, after which statements will cease to have legal status.
The parent or young person must be notified of the local authority’s intention to initiate the transfer review. In undertaking the needs assessment, the local authority must have regard to the SEN Code of Practice, but must not seek advice required for an EHC needs assessment if such advice has previously been provided for any purpose, providing all parties are satisfied that the advice is sufficient. The EHC plan must be finalised, where one is needed, within 14 weeks of the start of the transfer process. If a decision is made not to make an EHC plan, notification must be made within 10 weeks of the start of the transfer review process.
Non-statutory EHC plans
Over 2500 non-statutory EHC plans have been drawn up in the 20 pathfinders covering 31 local authority areas. The DfE advises that “while some of these non-statutory EHC plans may be suitable to be transferred to statutory EHC plans without significant changes, others may require additional assessment information and/or restructuring to comply with the 2014 Act and Regulations”. These plans should be made EHC plans in 2014/15.
Parents of children and young people for whom an EHC plan is drawn up must be offered the opportunity to have a personal budget. This may complicate the transition review process.