Changes to the Code of Practice: summary

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We’ve reprinted here a very useful summary of the main changes to the Code of Practice (this is the legal guidance for how local authorities must implement the Children and Families Bill.) This article is taken from blog www.senexpertsolicitors.co.uk

“As of today, 1 April 2015, a new Special Educational Needs and Disability (SEND) Code of Practice is in force…We have looked through the new Code to see what changes have been made and whether these were expected.

Changes
Earlier this year the Special Educational Needs and Disability (Detained Persons) Regulations 2015 came into force. As a result, the SEND Code of Practice required some amendment.

There are several hundred small changes including relatively inconsequential grammatical changes. The following are the most significant changes that we have noted. Paragraph references are per the new version of the Code.

There is a general increase in the duty to provide information to both children and parents. All references to informing parents and young people about decisions, agencies etc. now includes references to informing children too. Whether this means separately is unclear. For example, local authorities must now share details of information and advice services available in the area with children.

Paragraphs 4.59 and 4.60 have been amended so that the duty to provide details of the Local Offer is extended to children. This could, arguably, mean that local authorities may have to address the style of their Local Offer and/or consider issuing an easy-read version for children.

The introduction at paragraph xix has been amended so that discrimination arising as a consequence of disability is included. It also explains the duty on all education institutions to be proactive about eliminating disadvantage for disabled people.

The duty on Health and Wellbeing Board has been extended. Para 3.70 clarifies that the Joint Strategic Needs Assessment (JSNA) that must set out future needs for the whole population must incorporate health, social needs, public health and children’s services.

The duty to be involved in the preparation of the Local Offer now falls on NHS England as well as local clinical commissioning groups (Para 4.15, final bullet).

The Local Offer should now include details of social care “and other provision”. The Code does not clarify what this “other provision” may include and examples of it are as previously set out in the 2014 version.

The duty of improving outcomes has been extended. At paragraph 6.1 all children are entitled to receive an education appropriate to their needs which promotes high standards and enables them to fulfil their potential. This is a significant expansion to the previous provision which only required delivery of education which enabled children to make progress.

Unhelpfully, Chapter 8 now begins within two paragraphs numbered as belonging to Chapter 7. What is particularly odd is that these paragraphs were correctly numbered in the 2014 version.

When considering the request for an EHC needs assessment, the duty on a local authority has been increased so that it “must have regard”, rather than simply pay attention, to the wishes and feelings of the child, young person and parents (para 9.12).

In terms of the EHC needs assessment, the local authority must now seek advice from Youth Offending Team or any relevant organisation if the young person is serving their sentence in the community.

If a local authority refuses to make a Personal Budget, it is now required to work with parents to help ensure personalisation of support and any refusal should be recorded and reported back and considered in future joint commissioning arrangements so greater choice and control is secured (Para 9.106).

Chapter 10 has been widely amended to incorporate the additional duties to children and young people in youth custody. Those changes are substantive and wide-ranging and have been widely reported elsewhere. What is particularly important is that if a child had an EHC Plan before going into custody, the education, health and social provision within that Plan must still be provided.

If a parent or young person wishes to go through mediation about health care issues, the local authority must inform the clinical commission group within three working days – previously this was simply three days.

Conclusions

The amendments that have been made are broadly as we expected.

We had been cautious about this new guidance given the department’s recent track record on amending statutory guidance. However, these changes are unlikely to change much special educational needs advice, except to improve the position for young people in custody.

There are some changes which go beyond what we expected. It seems that if local authorities do refuse to make Personal Budgets they need to endeavour to remove that reason for refusal in future years. Further, the nature of education that all pupils can expect to receive goes beyond that previously stated.

S19 Children and Families Act 2014 creates a statutory duty to support a child so that they achieve their “best possible educational and other outcomes”. The previous version of the Code limited this. However, the new Code clearly requires that local authorities go beyond adequate and deliver a bespoke, tailored, highly differentiated and codified education for all children. In our view, this is more than an adequate education.”

Copyright: Edward Duff / Senexpertsolicitors.com

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