Should the Implementation of the Children and Families Bill be Delayed?
September 2014 is set to see some of the biggest changes for children and young people with special educational needs in the last 30 years. It is extremely worrying therefore, that at present, the Children and Families Bill still leaves many vital questions unanswered as to the right of these children and young people.
It was hoped that the accompanying Regulations and the new Code of Practice would have addressed some of the gaping holes that the legislation leaves but this has not happened.
The Code of Practice should provide a good idea of what these significant changes will look like when implemented, but the document is yet to be finalised. We are currently in June and the responses to the Government’s consultation on the Code are only now being considered The draft Code certainly failed to provide a clear idea of what the new changes will look like in reality, and did not adequately address the questions raised by the legislation itself.
Although a lengthy document, at some 174 pages, the draft still fails to adequately address who will be entitled to what support through the new Education, Health and Care Plans (EHCs) which are intended to effectively replace statements of special educational needs. It also fails to adequately address the position of young people and parents between the ages of 16 and 18, currently providing for authorities to deal direct with young people from the age of 16 onwards.
It fails to deal with potential issues over mental capacity and furthermore completely contradicts the fact that parents continue to have parental responsibility for children up to the age of 18.
Further issues include a complete lack of clarity on how the relevant public bodies are expected to work together to meet the needs of the child . Research recently conducted and reported in ‘The SEN and Disability Pathfinder programme Evaluation: Readiness for reform and effectiveness of Pathfinder Champions’, showed that devising eligibility criteria was an area in which least progress has been made by local authorities. Hardly surprising since the Government are yet to set the goal posts here.
The same report also highlighted the stark lack of progress made in relation to devising adequate procedures for multi-agency working. Again, this is hardly surprising given the minimal and inadequate guidance provided to date.
Without clarification on these important issues, along with a number of others, it is unfathomable that local authorities can look to properly prepare for the implementation of these new changes.
What Will This Mean for Children?
The failure of authorities and other public bodies to properly plan and implement effective procedures in order to properly and lawfully cater for the needs of children who have special educational needs and/or who are disabled could be catastrophic. Simpson Millar are currently dealing with a large number of disputes between public bodies and parents , advising them on their legal entitlement for support/provision. The problem for September however is what their entitlement actually is as this is still very much up for debate based on the current wording of the Act and the draft Code.
Inevitably, this will result in an increase in parents seeking to challenge authorities on what provision their child requires and ultimately case law will grow to slowly fill in the gaps that the legislation and guidance fails to. This is far from ideal as it will leave parents having to try and navigate a new system in order to establish what they can expect for their children and to challenge what is being provided. This is contrary to the aim of the changes which was to encourage parents, young people and authorities alike to work together in the best interests of that young person and avoid the need for lengthy tribunals, appeals, or other litigation.
Instead, it seems the changes are likely to lead to more disputes and uncertainty about how to deal with such disputes.
Sensibly, it has been suggested by a number of charities, parent bodies and other organisations that the implementation of the changes should be delayed to provide time for some of the more obvious and fundamental issues to be addressed, in advance of the implementation of the legislation in September.
Despite these suggestions the Government seems set on implementing their changes in accordance with the existing time frames. The rationale for this remains unknown. The Government did suggest, at one point, that a further review of the reforms could take place once they have been implemented for a year and any issues could be dealt with then. This cannot possibly be a satisfactory stance given the importance of what is being considered here. We are dealing with reforms in the way that we treat and care for some of the most vulnerable people in our society. It cannot be acceptable to take a stance where, ‘we will see how it goes’ - when major flaws have already been highlighted. The risk ignoring these issues is too great.
The risks involved in a delay in implementing these reforms? We do not know as there is nothing that obviously outweighs the risk of implementing a new system when the necessary preparations have not been made.
The Government appears to be steaming ahead with major reforms on vital issues with little regard for the necessary consultation processes or for the practicalities of what they are asking of public bodies. They have failed to properly consider the impact of public bodies failing to meet the required timescales on the needs of children and it will be the families of these children that will again be left to fight to secure appropriate provision for these children and young people.