SEN Reforms Code of Practice - What We Really Think

Dated:   

This is a candid response following the consultation regarding the SEN Reforms Code of Practice, Elaine Maxwell is a passionate advocate for improving the SEN system with personal experience of children with special educational needs.

The Response:

Q1 Does the code reflect the changes made to the consultation draft to take account of the amendments in the Children and Families Bill to include disabled children and young people in the provisions on identifying children and young people, integrating education, health and care provision, joint commissioning, the local offer and providing information and advice?

Insofar as the new Code frequently simply repeats the wording of the statute, it clearly reflects the amendments in these areas. That is not to say that the Code is useful or that the changes involved improve matters substantially for parents and young people. We have significant concerns set out below in answer to Q2 about the way in which information is proposed for the post 16 Age group. This has not been met in any adequate fashion by para 1.8 of the new Code which merely states that the authorities t should engage directly with the young person rather than the parent once the young person reaches the end of compulsory schooling. For more details of our concerns, see the section under Q 2. As far as this paragraph is concerned, the implications are completely unclear. Absolutely no detail has been given on the way that local authorities should go about trying to ensure that parents can be involved if the young person would like this to happen.

Q2 Does the code reflect the changes made to the consultation draft to take account of the amendments in the Children and Families Bill to include children and young people in the local authority duties to provide information and advice?

The amendments to the Children and Families Bill in this issue are minor but in fact the provision and changes in the new Code of Practice on information and advice to all parties concerned (parents, children and young people) are major and by no means confined to Chapter 2. In most cases these changes in drafting do not relate to the specific changes flowing from amendments to the Act. We have significant doubts that this consultation is anything other than a sham. 10 working days over a holiday period is completely unacceptable, particularly for a document which has in parts been totally rewritten. In addition, it is noticeable that most of the major charities representing parents and those with special needs have been left out of the groups that the government wishes to see responding, and the list includes only those organisations which the Government presumes will not object to its approach in the interests of co-operation. While we would like to see joint working as much as possible, this is not feasible if the only groups consulted are those which can be relied upon not to “rock the boat” by putting forward suggestions which the Government does not welcome.

Our particular concern, and that of many parents and charities, is the way that the proposed application of mental capacity principles appears to have knocked out those most able to give support to young people from the process of helping them with advice and information. One of the real difficulties which arises in the provision of information and advice for young people (and again in the process for dispute resolution) is the total change in emphasis under the new Code in the way that young people over the age of 16 are to be treated. The new Code has been substantially rewritten in this respect, both in Chapter 2 and in Chapter 8, to make it clear that parental involvement and information only takes place with the consent of the young person. The strong implication from this is that unless the young person volunteers that they wish their parents to be involved, there will be no separate communication with them. Although paragraph 2.13 states that parents should be able to access information on behalf of the young person, the previous paragraph makes it clear that the rights transfer to the young person. Chapter 8 makes it even more clear that information and advice goes primarily to the young person and unless they opt in for parental involvement the parents may know nothing about what is going on, and be unable to help the person for whom they still retain parental responsibility under the Children Act 2004 until the age of 18

While this may be correct under the Act, the fact remains that while many young people with SEN have capacity under the Mental Capacity Act definitions to understand the information they are being given, many of them will not have the experience to recognise when they are being recommended provision which the local authority wants them to have for budgetary reasons rather than what they really need to meet their educational problems. A proper system needs to be set out to require the local authority to provide specific advice guidance to the young person about the benefits of keeping their parents informed. The BMA issues guidance to doctors acting for children with capacity and young people under the age of 18, stating “every reasonable effort must be made to persuade the child to involve parents or guardians particularly for important or life-changing decisions.” We consider that the same should apply to discussions and advice and information for young people under the C&F Act so that there is a requirement on local authorities that they specifically ask the young person whether they are prepared for their parents to receive information, and unless this is refused, parents should be included in all documentation. Unfortunately, the ridiculously short period for consultation means that we have been unable to discuss this with youth organisations for ways in which this might work. This is particularly important when it comes to advice and information about personal budgets.

Equally, there will be many young people with SEN under the age of 16 who nevertheless have capacity for decision-making. The Code does little to ensure that they are kept fully informed on all issues. Lip-service is paid for obtaining the views of children but this is a requirement under current procedures yet frequently ignored.

There has been a major rewrite of the Code which was given a longer (albeit reduced) period of consultation, and no consultation at all on the redraft merely the changes resulting from the amendment of the Children and Families Act. This is a clear breach of the principles behind public consultation and appears to be motivated by little other than the desire to get the provision started by the beginning of the academic year before the general election. Changes to the provision for our most vulnerable children and young people should not be effected in this fashion.

Q3 Does the Code clearly reflect the changes made to the consultation draft to take account of the amendments in the Children and Families Bill to provide for local authorities to set out what action they intend to take in response to comments form children, young people and parents on the local offer

We have no concerns about the proposals in connection with the local offer, except to observe that the requirements being placed on local authorities when receiving comments about their draft offer, have not been mirrored in any way by the approach adopted by the DfE in response to earlier consultations about the Code of Practice. We have not been informed what comments have been received, and from whom, or what the Department intends to do about them, apart from the very generic statement about improving the layout and clarity of the Code.

Q4 Does the Code clearly reflect the changes made to the consultation draft to take account of the amendments in the Children and Families Bill to clarify when health and social care is to be treated as special educational provision?

Only time (and the courts) will tell whether the new definition of when health and social care will be helpful to parents in future, but at first blush the new definition is very much better than that contained in the original bill, and could well deal with some of the more intractable problems of the last 10 -15 years. On the other hand I am concerned that the new draft perpetuates the position of the last Code of Practice in that only speech and language therapy is mentioned specifically as being of a type which should normally be recorded as educational. In our experience it is only in rare cases that occupational therapy for a child or young person with a statement is for non-educational reasons, yet this is frequently a battle ground between parents and authorities, as local authorities will often attempt to categorise it as non-educational. While the Tribunal will usually put this right on an appeal, it would be much better to avoid the problem from the outset by setting out that the same presumption also applies to occupational therapy. This would not prevent it from being kept as a health need in appropriate cases but reduce the scope for argument in the vast majority.

The Code reflects the amendments to the bill but could assist by amplifying the position better.

Q5 Does the Code clearly reflect the changes made to the consultation draft to take account of the amendments in the Children and Families Bill to require local authorities to include the social care services they must deliver under the Chronically Sick and Disabled Person’s Act 1970 in Education Health and Care Plans?

The Code reflects the changes to the bill largely because it repeats the wording of the new Act section 37 (2) (e) and (f). It does not however give a clear view which is useful to parents (or others, apart from local authority officials) of exactly what they may expect under the Chronically Sick and Disabled Persons Act and so is not a particularity practical amendment, merely of use to lawyers.

Q6 Does the Code clearly reflect the changes made to the consultation draft to take account of the amendments in the Children and Families Bill to clarify the duties on local authorities in respect of young people over 18 with SEN. These are to consider whether the young person requires additional time, in comparison to the majority of others of the same age who do not have SEN, to complete his or her education or training, and to have regard to whether education or training outcomes specified in an EHC Plan have been achieved when considering whether or not to cease to maintain the plan?

The section specifically on requests for assessment by those over the age of 18 is accurate in that it follows the wording of the statute precisely, but fails to give proper and useful examples of when this might occur, which would be helpful to young people and authorities alike. A classic example would be that of a person with dyslexia who has had to repeat a year of education (not uncommon in these cases) in order to resit or take extra time for sitting GCSEs. They may well be able to cope with an A level curriculum but this would need to continue beyond the age of 18 in order to complete the exams.

There are further problems with the wording of the Code of Practice in this area. The Act specifically states that the local authority “must have regard” to whether or not the education or training outcomes have been achieved. The draft states `the statement can only continue where inter alia “the education and training outcomes have not yet been achieved”. This fails to take account of cases where, following additional educational provision, it has become clear that those outcomes were an underestimate of what was achievable, and would provide an incentive for local authorities to push for outcomes to be set at too low a level. In addition, there is a risk that there will be an excessive focus on academic or work related outcomes. For some of the most severely disabled young people, the only appropriate outcomes are those relating to communication or some element of life skills. These may seem small in achievement but can make the difference between someone who can be supported in a sheltered setting and someone who will need 1:1 or even 2:1 support for the rest of their adult life. This amendment to the draft Code is not as a result of a change of the Bill but has an adverse affect on young people and there has been insufficient consultation.

Q8 Does the Code clearly reflect the changes made to the consultation draft to take account of the amendments in the Children and Families Bill to extend disagreement resolution agreements and mediation to health and social care as well as education?

As far as the health and social care aspects are concerned, we expect that in the vast majority of cases these will relate to educational provision as they are designed to support the education and training of the child, so the separate systems are not particularly relevant. But the current drafting of the Code should make it clear that parents are entitled to the educational system for mediation when they consider that provision being made by health for example is educational. As currently drafted, many parents may well think that because, for example, speech and language therapy is being described as health provision, that the only way of challenging this is through the health complaints system. Where there is mention of the “SEN element of the plan”, this should be amplified to include reference to other provision made by health or social care to aid in the education or training of their child. This should also be clarified in paragraph 11.18 of the Code.

It is not clear from the Code whether or not there can be other mediation attempts after an appeal has been lodged. In our experience, mediation at that point is the one most likely to achieve a settlement By that time the local authority is aware that their provision is going to be subject to significant review by the Tribunal and is often more inclined to reach good working compromises. Meetings beforehand, whether chaired by a mediator or simply run by the local authority tend to be viewed by parents as a rather alarming ordeal where they are facing a large number of different professionals all trying to convince them that the plan as drafted is totally satisfactory. We would be all in favour of the early resolution of disputes if it led to better provision – all too often it leads to a sense of defeat on the part of parents who then feel unable to challenge what may be poor provision.

Because of these points, we may find that parents will avail themselves of dispute resolution services, which seems to be the main method for resolving problems without the need for a hearing once an appeal has been lodged, as it is not clear from the Code whether or not mediation can be used at this stage. The disadvantage of using the dispute resolution service in this case is that there appears to be no way of enforcing the attendance of the providers of social or health care.

Another significant difference between the two is that it appears possible to involve schools (including academies) in dispute resolution but not mediation. We have acted in a number of cases where academies have raised strong objections to the placement of a child with special needs at their school, often on grounds of dubious legality – see C v Hackney Learning Trust 2012. It would be helpful to have them attend meetings in advance of any tribunal hearing, as this may enable them to understand that the placement of a child at their school with a properly worded plan and funding is not the barrier they feared. It may also help to smooth the path of the child if he or she is ultimately placed in the academy or school despite its initial opposition.

The question posed in the consultation does not of course relate to any of these issues despite the total redrafting of this section but only the health and social care aspects.

Q9 Comments on the layout and clarity of the new Code

Our comments on this are going to be confined to the obvious errors in law where the drafting has been a bit too free and easy in its description of what the statute means.

  1. 6.19 appears to require that the child has had persistent long lasting difficulties in order to be considered for assessment. This is not the law – which is simply that the child has difficulties requiring provision that is different from that generally made for other children of his age in the local authority’s mainstream schools. Any subtle changes introduced through the Code are likely to be adopted by LA officers and fed through to parents who may not then understand their rights.
  2. Similarly 9.139 states that an assessment may be needed if the provision required cannot reasonably be provided from within the resources normally available to the school – again this is not the law, which does not include the words “reasonably” or “normally”. This mistake is also repeated in the diagram at paragraph 3.19.
  3. There is an emphasis on focussing on outcomes, which is not justified within the statute. Outcomes are important for all children but provision is to meet needs not outcomes. In addition, the Code itself focusses on outcomes, which may not be appropriate for children with the most severe difficulties.

Generally, we have serious doubts that this Code will fulfil the same useful purpose for parents as its two predecessors. The bulk of it is taken up with general pious phrases on consultation, joint working and co-operation which have little effect in practice on what is happening on the ground and may well lead simply to more meetings between more statutory bodies with little being achieved other than the production of more reports. The only useful parts for parents start at page 128, although there are some extremely worrying sections in Chapter 8 for parents of young people. Given the preferred distribution list for this consultation which managed to avoid nearly all of the main groups working directly with parents, one cannot avoid the conclusion that for all the words on parental involvement this is still a process in which they are seen as outside nuisances to be fobbed off with meetings and mediation.

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