Welsh Assembly seeks expert advice on special educational needs

Wales is currently reviewing how to support children and young people with special educational needs (SEN).

Today, we were fortunate enough to contribute at a roundtable event hosted by the Welsh Assembly’s Children, Young People and Education Committee. The purpose was to discuss the new draft legislation and assist the Committee with ensuring that it delivers what it hopes to.

As it stands, the new legislation, the Additional Learning Needs and Education Tribunal (Wales) Bill, remains subject to scrutiny and consultation.

Currently, Wales operates a system of graduated response with the highest level of intervention being Statement of Special Educational Needs (SSEN). The purpose of the reforms is to replace the graduated system with one document – the Individual Development Plan (IDP). The reforms re-name SEN as “Additional Learning Needs” (ALN).

The Bill is detailed, so it is not possible to explain it fully here. In overview, the expectation is that the vast majority (around 90%) of pupils with additional learning needs will be issued with an IDP which is prepared by their school. It is not clear how the school will assess the pupils’ needs as that will be the subject of Regulation and a Code of Practice. The minority – around 10% - will have an IDP issued by their local authority. Importantly, there will in theory be no material difference between a school IDP and a local authority IDP, apart from additional funding being available.

Similar to the reforms of the Children and Families Act in England, this Bill will increase support so that it covers ages 0 – 25. However, currently, the Bill does not enable young people to have an IDP if they are undertaking an apprenticeship. The only way of having an IDP post-16 will be to attend a Further Education College. There is also no way to secure an IDP in Higher Education.

The Committee sought views on six issues:

• Replacing the graduated response of SEN support with a single approach of an Individual Development Plan
• Whether school governing bodies, or local authorities, should be responsible for the Individual Development Plan
• The plans to increase the system to 0-25
• Whether there are adequate systems to require multi-agency involvement
• Fairness, transparency and dispute resolution in the new system
• Implementation and financial implications of the new system

Replacing the graduated response of special educational needs support and Statements with a single approach of an Individual Development Plan

The concern is that the changes will not result in any benefit to children and young people with special educational needs / additional learning needs.

Many delegates considered that the current system lacks accountability, transparency and much of the law is written in an ambiguous way. The concern is that the Bill seems to allow still for a wide degree of ambiguity.

The benefit of the three-tier system is that it is clear that when a child or young person requires additional support they progress through the system. The system of IDP makes it difficult to recognise how a child or young person is supported and who is responsible for that support.

There is also significant concern that schools, with very stretched resources, will be expected to take on even more work. Whilst schools prepare Individual Education Plans, which are short-term target setting plans used in SEN support, preparing an IDP is very different. It requires expert advice and assessment. It is not clear how schools commission this or secure further assistance.

The IDP system also allows schools to seek assistance from local authorities in assessing a child or young person and in preparing the IDP. Many noted that this may well put working relationships between schools and local authorities under strain.

There are no plans to prepare a template for an IDP. There are significant difficulties in England because there is no template for an Education Health and Care Plan. The opinion seemed to be unanimous that a template for an IDP is required to ensure consistency.

The key issue noted is the significant lack of recourses. This includes money and professionals. A repeated concern was that without adequate professional support and available services, no reform will succeed. Equally, it can lead to a lack of accountability and consistency of support that can be expected.

Whether governing bodies, or local authorities, should be responsible for the Individual Development Plan

The Bill does not make it sufficiently clear when the local authority, rather than the school, will be responsible for assessing a child or young persons additional learning needs.

Currently, the Bill provides that the local authority should assess when it is not reasonably possible for the school to meet the pupil’s needs using existing resources.

This wording is very similar to that of the Education Act 1996 and the test for a Statement of Special Educational Needs. This resulted, and still results in, significant litigation and appeals.

If the purpose of the reforms is to remove disputes, it should not seek to use the same wording as previously. There should be a clearer ‘line’ of when local authority intervention is required. This will always be difficult because special educational needs / additional learning needs, and the impact of those needs, is entirely subjective.

The group moved to discuss whether schools should have a specially allocated SEN expert, (SENCO, now ALNCO). In many schools, SENCOs have teaching duties as well as their responsibility as a SENCO (ALNCO).Given the likely significant increase in duties, it seems sensible to make the SENCO’s role purely about IDPs.

A comprehensive system, 0-25 years

If there is to be a system supporting pre-school children, the Bill needs to address who is responsible for assessing their needs and providing the support.

The difficulty is that if the starting point for an IDP is that the child’s school prepares it. If the child is not yet in school, it is not clear who prepares the IDP. That is because IDPs prepared by the local authority should only be for the most severely disabled young people. Clearly, therefore, the Bill needs to address this.

At the other side, the claim that the system extends to 25 does not stand to scrutiny. Currently, a pupil over the age of 16 can still access an IDP, but only if they attend a Further Education College. Clearly, this will disadvantage many of the most vulnerable young people with additional learning needs.

If a young person wishes to secure vocational qualifications or an apprenticeship it does not appear that they will be able to secure an IDP. That is because the current system requires the educational placement to prepare the IDP. The Minister is concerned that the Welsh Assembly may not have legislative ability to compel private companies to do this.

One option to resolve this is that an IDP could be seen to be a list of reasonable adjustments. If a local authority prepared the IDP – rather than the company in charge of the educational institution – the educational institution could be required to comply with it further to existing discrimination law.

Whether there are adequate systems to require multi-agency involvement

The general consensus is that the roles and duties are ambiguous.

There has been some difficulty with this element of the Bill because the Assembly has wanted to increase the duties on health professionals, but health professionals’ consultation responses have been that their clinical judgment must be respected.

This has meant that the Bill currently provides that health bodies are required to consider if there is a relevant treatment or service that is likely to be of benefit to a child or young person with additional learning needs.

This wording confers no obligations on health professionals.

The first issue is that the Bill confuses what is “necessary” with what would “benefit” a young person with additional learning needs. Further, the only obligation is to consider if a service would be of use. There is no obligation to provide that service.

There is a significant lack of resource that the Assembly will need to address. The current system struggles because many professionals recommend support on the basis of service capacity, rather than on the need of the young person. This is unlikely to change until service resources increase.

There is also concern that mental health services are inadequate. This has been echoed recently in England. Little seems to be in the Bill which will specifically target this area and, again, much will rest on whether services are adequately staffed and resourced.

Fairness, transparency and dispute resolution

The general feeling is that information about support for special educational needs is hard to find. Often, local authorities share information which is based on their local policies, rather than on the basis of legal obligations.

The general current system, and the Bill, need more work to ensure transparency. This could be achieved by sharing information on the law rather than local policies.

The need for independent advocacy was reiterated. Currently, families seeking support have to either rely on free services, which are unable to cope with demand, or seek legal advice from specialist education solicitors. There is a clear need for genuinely independent advocacy services.

Linked to the intention of a 0-25 system is also the issue of mental capacity. This issue was recently raised in the Special Educational Needs and Disability Tribunal. There has been a leading case which looked at parents’ ability to help young people with special educational needs. Whilst an interesting case, it came about because of a lack of clarity in the law. It is hoped that the Bill will address mental capacity and roles for parents for young people post 16 and post 18.

Implementation and financial implications

The Committee seems to believe that this new system will save money because there will be less appeals.

In fact, there are likely to be substantially more appeals because:

• New law creates uncertainty which often results in an increase in challenges and appeals;
• Increasing the system to 0-25 means thousands more pupils are covered by the system of Additional Learning Needs and Individual Development Plans. That means it is probable that the number of people that are unhappy with the support will increase. As such, appeals increase;
• Conversion from SSEN to IDP is likely to have the same problems as converting from SSEN to Education Health and Care Plans have had in England. The Special Educational Needs and Disability Tribunal has seen a massive increase in appeals since 2014, when the reforms came into force. It is reasonable to believe the same issues will occur in Wales on the current information.

The special educational needs reforms have cost over half a billion in England. The budget for the Welsh reforms is not clear.

Beyond the costs, the resource of expert professional is a serious concern. If the reforms are to work, and support children and young people in the way that is hoped, significant investment is clearly needed in that area.

Next steps

The Committee will now review the outcome and comments from the roundtable. A report is expected within the next two weeks.

The Committee will then report back to the Assembly and the Bill will proceed through consultation. Draft Code and Regulations will also be required in order to ‘flesh out’ how the new system of support will practically work.

If you are experiencing difficulties or have concerns about special educational needs as set out above or otherwise in securing additional support for your child from the Local Authority, then please do not hesitate to contact our specialist education law solicitor team on 02920 291704.