Education or Social Care for Young People: Understanding the Law
We often hear from young people who’ve been informed by the Local Authority (LA) that they’ll no longer maintain their Education, Health, and Care plan (EHCp) because they’re not pursuing academic qualifications. Instead, they’re advised to transition to social care services. Is this approach lawful? No.
Let’s delve into the case of Buckinghamshire County Council v SJ  UKUT 0254 (AAC). This case addressed issues around capacity and the necessity of following academic subjects for an LA to maintain an EHCP. It was established that developing functional or vocational skills is appropriate, and all special educational needs should be met by providing the necessary special educational provision.
Here is a summary of the decision:
The case dealt with a capacity issue involving a young person named Ryan, born on 22 February 1996, diagnosed with various conditions. His parents sought to be welfare deputies under the Mental Capacity Act 2005, but the request was denied. The Court of Protection ruled that disputes about Ryan’s residence should be resolved by the court, not a deputy. The focus then shifted to whether an Education, Health, and Care (EHC) plan was necessary for Ryan.
Young Persons and Capacity Issues:
The decision outlined three scenarios related to a young person’s capacity: having capacity, lacking capacity, or having capacity in doubt. The analysis delved into the legal framework, regulations, and the role of an “alternative person” when a young person lacks capacity. An “alternative person” in the context of special educational needs (SEN) refers to an individual who can act as a representative or advocate for a young person with SEN, for example in the process of obtaining an Education, Health, and Care plan (EHCP). The term “alternative person” is used to ensure that the young person has appropriate representation in the planning and decision-making process related to their special educational needs.
First-tier Tribunal’s Decision on Ryan:
The First-tier Tribunal considered Ryan’s case, where the local authority refused to issue an EHC Plan, arguing that further education wouldn’t significantly benefit him. The tribunal allowed the appeal, directing the local authority to issue a plan.
Arguments and Grounds for Appeal:
The local authority appealed, claiming the tribunal failed to consider whether Ryan’s needs could be met at the care home, that a plan was unnecessary for specified therapies, and that Ryan’s minimal progress meant a plan wasn’t warranted. The tribunal rejected these arguments, emphasising its jurisdiction and the need to stay within its limits.
Tribunal’s Decision Not in Error:
The Upper Tribunal affirmed that the First-tier Tribunal’s decision was not in error. It dismissed the local authority’s appeal, highlighting that the tribunal correctly focused on the issues presented by the parties. The decision emphasised that qualifications were not essential for education, and Ryan could still benefit from educational provision.
This case is a useful reference if an LA argues that only the pursuit of academic qualifications justifies maintaining an EHCP.
The full decision is available here:
2nd December 2023
Clarifying the Government’s Stance on Education, Health, and Care plans (EHCp’s)
The Minister for Children, Families, and Wellbeing, David Johnston, has addressed concerns about Education, Health and Care Plans (EHCPs) following reports suggesting the government aimed to reduce their number by 20%.
In a letter to the Chair of the Education Select Committee, Robin Walker MP, Minister Johnston clarified that there is no intention to impose a 20% reduction in EHCPs. This comes after news in The Observer indicated that the government had engaged a consultancy firm as part of a programme called “Delivering Better Value in SEND,” with a purported goal of reducing new EHCPs by at least 20%.
Mr. Walker, who heads the Education Committee, pointed out that this appeared to contradict previous statements from Claire Coutinho, a former children’s minister, who stated that the Department had no intention of limiting EHCPs through the SEND and AP Improvement Plan.
Minister Johnston explained that their primary objective is to revamp the system to prioritise the child’s needs and provide necessary support earlier, potentially reducing the need for EHCPs. However, he reassured that every parent and family’s existing legal right to an EHCP will continue to be guaranteed when needed.
The 20% reduction mentioned in the contract with the consultancy firm does not represent a specific target or goal set by the government or local authorities. Rather, it reflects a potential outcome if the “Delivering Better Value” programme succeeds in helping schools and local authorities identify needs early and provide appropriate support without requiring an EHCP.
Minister Johnston also expressed his intention to respond to the broader comments and questions raised by the Education Committee, including requests for information regarding the proportion of inspectors with a background in special schools who inspect specialist settings.
In essence, the government’s focus is on improving support for children and young people with special needs, rather than reducing EHCPs. It aims to ensure that every child receives the right assistance, tailored to their requirements.
The passage of time will allow us to evaluate Minister Johnson’s claims more fully but more on the above can be found here:
Concerns Rise as New Autism and ADHD Diagnosis Screening Service Rejects Majority of Referrals
The introduction of a ground breaking screening system for adults seeking autism or ADHD diagnoses has raised substantial concerns due to its rejection of up to 85% of referral requests. This system, initiated by NHS authorities in York and North Yorkshire in response to increasing demand and extended waiting times, aimed to prioritise those at the greatest risk. Under this new “pathway,” individuals interested in a diagnosis were required to complete an online questionnaire known as the Do-IT Profiler, accessible solely through a GP or healthcare professional. The profiler would then refer only those who met stringent criteria.
However, data provided by the Humber and North Yorkshire Integrated Care Board (ICB) in response to a freedom of information request showed that, since its launch in March, 3,254 individuals registered on the Do-IT Profiler, but only 501 were referred for assessment. This implies that only 15% of questionnaire users are being referred. What’s more, due to the extensive waiting times of approximately 2.5 years, none of the 501 referrals have yet undergone an assessment.
Originally designed as a three-month trial, the pilot has been extended until the following June. Campaigners like Hilary Conroy of York Disability Rights Forum have expressed concern over the limited referrals, stating that the promise to “prioritise those most at risk” rings hollow when faced with these statistics.
Furthermore, even those who qualify for referral are not immediately directed to an assessment but instead undergo clinical triaging, which itself has a waiting list of 12 to 15 months. A diagnosis is crucial for many individuals to better understand themselves and lead fulfilling lives.
Recent years have witnessed a significant surge in demand for autism and ADHD diagnoses, partly due to heightened awareness and public discourse. Many adults are now seeking diagnoses, particularly those who weren’t identified during childhood when these conditions were less well-understood.
However, the increased demand has strained underfunded NHS mental health services. The CEO of the charity ADHD UK, Henry Shelford, emphasised the importance of these diagnoses, pointing out a Canadian study that found high suicide attempts among individuals with ADHD. Shelford highlighted that a diagnosis enables people to comprehend themselves better and lead more fulfilling lives.
The pilot’s shortcomings have been evident, with accessibility issues and inadequate support for those not referred for assessment by the profiler. Nevertheless, the NHS argues that without this pilot, the waiting list would likely have closed, leaving no provision for applicants. The debate continues over how to best address the growing need for autism and ADHD diagnoses while ensuring timely and equitable access to assessments and support.
More about the service can be found here:
Members of Parliament are seeking clarification in the face of reports concerning government objectives to reduce the quantity of Education, Health, and Care Plans.
The Education Committee has raised concerns and sought clarification from the Department for Education (DfE) regarding a recent report in The Observer. According to this report, the government entered into a contract with a consultancy firm in July 2022 as part of the Delivering Better Value in Send programme, with the apparent goal of achieving a minimum 20% reduction in new Education, Health, and Care plans (EHCPs) issued.
In a letter addressed to David Johnston, the Parliamentary Under-Secretary of State for Children, Families, and Wellbeing, committee chair Robin Walker MP expressed concern over this revelation. This development appeared to contradict statements made by former children’s minister Claire Coutinho, who, during an evidence session in May 2023, asserted that the DfE was not attempting to limit EHCPs through the SEND and AP Improvement Plan.
Recent reports have also highlighted efforts by Kingston and Richmond councils to “manage demand” for EHCPs, further raising concerns about potential rationing.
Despite these concerns, the committee voiced its support for various proposals outlined in the Special Educational Needs and Disabilities (SEND) and Alternative Provision (AP) Improvement Plan, released earlier in the year. These proposals included increasing the training of Special Educational Needs Coordinators and educational psychologists, standardising and digitising EHCPs, and boosting overall funding through the Change Programme.
The committee welcomed Coutinho’s confirmation that mandatory mediation would not be tested in the Change Programme. This decision addressed concerns raised by witnesses and families, who feared that mediation would become compulsory to resolve EHCP disputes before initiating tribunal appeals.
Additionally, the committee appreciated Coutinho’s announcement that inspectors who assess specialist settings would receive specific SEND training as part of the Ofsted strategy 2022-27, which includes both initial training and annual updates. However, the committee sought information on the proportion of inspectors with backgrounds in special schools.
In conclusion, Walker acknowledged that while the SEND and AP Improvement Plan contained many positive measures for the benefit of children and young people, issues such as funding, regional disparities, workforce challenges, early identification, and timelines continued to be sources of concern.
In response, a spokesperson from the Department for Education refuted claims that support for children and young people with SEND was being withdrawn. They emphasized that there were no specific targets for reducing EHCPs and highlighted the government’s substantial investments in high needs budgets and capital. The DfE’s reform plan aimed to enhance SEND support with earlier interventions, with EHCPs remaining available for parents as a vital option.
The Education Committee’s request for clarification reflects ongoing scrutiny of government policies and actions related to special educational needs and disabilities, ensuring that the rights and needs of children with SEND are adequately met.
A copy of the letter Mr Robin Walker MP sent to David Johnston Parliamentary Under-Secretary of State for Children, Families and Wellbeing can be found here:
I need to draw to your attention to recent developments concerning the UK government’s efforts to address the financial strain on councils and support for children with Special Educational Needs and Disabilities (SEND).
As reported by The Observer, the Department for Education (DfE) entered into a £19.5 million contract with consultancy firm Newton Europe in June 2022, initiating the Delivering Better Value in SEND (DBV) programme. One of the primary objectives outlined in this contract is to reduce the number of new Education, Health, and Care plans (EHCPs) by 20%.
The increasing demand for EHCPs in recent years, coupled with lack of resources, has strained council budgets. While the government maintains that this reduction aims to “improve” the system rather than specifically target EHCPs, concerns have been raised.
Junior education minister Ms Claire Coutinho, who now serves as the energy secretary, initially denied the existence of targets but later clarified that the reforms intend to enhance the system rather than solely reduce EHCPs.
In addition to EHCPs, the DBV programme also seeks a 20% reduction in placements in independent schools and a 2% reduction in placements in special schools. These reductions aim to promote increased inclusion in mainstream schools.
The Department for Education emphasises that these targets are not legally binding on Newton Europe and were not communicated to councils/LA’s. They argue that the DBV programme aims to help local authorities provide more effective SEND services by addressing children’s needs earlier.
However, critics raise valid concerns that these measures may undermine inclusion and create further challenges for children with special needs. The debate continues, with calls for more transparency and a clear commitment to providing adequate support children and young persons while addressing budgetary concerns.
We need to encourage open and constructive dialogue to ensure the best possible outcomes for children and young persons with SEND. In the forthcoming months we will be running an online seminar to address the issue of “ceasing to maintain an EHCp” to address the test that needs to be satisfied in such cases and what possible responses are available to children and young persons.
More about Newton Europe can be found here: https://connect.newtoneurope.com/childrens-services?_ga=2.59320877.1629600287.1694457363-349023037.1694457363
The Department for Education (DfE) has recently unveiled new Statutory Guidance concerning Suspension and Permanent Exclusion, which is set to come into effect on 1st September 2023.
These changes are aimed at ensuring fairness, transparency, and consistency in the processes of suspension and exclusion within our schools.
The term ‘exclusion’ has been replaced to encompass both suspensions and permanent exclusions, aligning the legal framework with the notion of ‘exclusion for a fixed period’.
Importantly, the DfE considered these changes an extension of their prior 2021 consultation, without conducting a fresh round of consultations.
Key amendments include updated guidance on the authority of Headteachers to rescind suspensions or exclusions under specific conditions. This empowers them to act when criteria like a lack of review by the Governing Discipline Committee and a suspension period under 45 school days within the current year are met.
Additionally, the introduction of remote access options for Governors’ Discipline Meetings (GDMs) or Independent Review Panel Meetings (IRPHs) is a noteworthy feature. While remote access is permissible, face-to-face meetings remain the preferred approach.
The guidance emphasises that remote access should not be the default choice, provides instructions for managing remote meetings, and is slated to be effective from 1st September 2023. Notifications about the availability of remote access will be communicated around that date.
It’s important to acknowledge that exclusions often undermine the educational lives of autistic and other neurodiverse children. Although the guidance does mention legal protections for disabled children, there’s room for further improvement in this area. Given the significance of this guidance and the broader topic of exclusion, I’m pleased to share that we’re planning sessions on school exclusions as part of our free legal seminars offered by the charity. Please check at www.annakennedyonline.com for updates on when these sessions will be held.
You can find a copy of the full Guidance document here: Link to the Guidance Document
Education plays a vital role in shaping our society, and it’s heartening to see efforts being made to enhance the inclusivity and fairness of our educational institutions. Let’s stay informed and engaged on matters that impact our children and their futures.
Sean Kennedy, Barrister