Children and Families Act, 2014
The Children and Families Act has been described as the biggest reform to child welfare legislation in 30 years. It included changes to special educational needs, health and social care.
Under the new Act, in Part 3, statements of special educational needs for children in schools and learning difficulty assessments for young people in further education and training, were replaced with a single combined Education, Health and Care Plan (EHC plan) and extended the age of eligibility for those still in education from 16 years old to 25 years old.
It set an important new legal framework of support from an early age right into adulthood. It created a new comprehensive birth to 25 years and placed a duty on statutory organisations to work together to align Education, Health and Social Care services. As a legal document, the plans are specific to the needs of the individual and aim to co-ordinate a multi-agency approach.
There is a focus on:
- wishes and feelings and participation in decision-making (co-production)
- aspirations and goals and improving outcomes for children and young people and transition through to adulthood
- joint planning / commissioning of services
Key points include:
- An EHC plan is a legal document which describes a child or young person’s special educational needs, the support they need and the outcomes they would like to achieve
- EHC plans may be maintained for young people up to the age of 25 years as long as they remain in some types of education
- In the EHC plan there should be a range of outcomes over varying timescales, covering education, health and care as appropriate, though it is the education and
training outcomes only that will help determine when a plan is ceased for young people over 18 years - If an EHC plan has been agreed the final plan must be completed within 20 weeks from the date the EHC needs assessment was requested
- Local authorities must provide impartial advice, support and mediation services
- An appeal to the The First Tier (Special Educational Needs and Disability) Tribunal can be made if the parent/ young person is unhappy with a decision the LA has made in relation to an EHC needs assessment or an EHC plan.
- Mediation must be ‘considered’ before making an appeal
- Personal budgets must be made available for SEN education provision along with a right to request direct payments
- Developing a Local Offer
For more information go to the IPSEA website
SEND Code of Practice, 2015
The SEND code of practice provides statutory guidance on the SEND system for children and young people aged 0 to 25.
The Special educational needs and disability code of practice 2015 is important statutory guidance. It details lots of the practical steps and things that should be considered when decisions and actions are made and taken in relation to children and young people with special educational needs.
If the Code says something must be done, then it is referring to a legal duty that must be complied with.
If it says something should be done, then this means the guidance should be followed unless there is a good reason not to.
The organisations and bodies who need to consider the SEND Code of Practice are:
- local authorities (LAs)
- the governing bodies of schools
- the governing bodies of institutions in the further education sector
- the proprietors of academies
- the management committees of pupil referral units
- section 41 schools and colleges
- all early years providers in the maintained, private, voluntary and independent sectors providing free education and childcare places
- the NHS and Integrated Care Board
- Youth offending teams and relevant youth accommodation, and
- the SEND Tribunal
For more information go to IPSEA website
Care Act 2014
The Care Act combines various existing pieces of legislation which previously shaped how social care was arranged in Britain into a single framework for care and support.
The Care Act is mainly for adults in need of care and support, and their adult carers. However, there are some provisions for the transition of children in need of care and support as they move to adult services, parent carers of children in need of care and support, and some younger carers. It was a major step forward in giving carers parity of esteem with those they care for, statutory entitlements to assessment and support in their own right, and removing requirements to be providing a set number of hours of care to be eligible for help from councils.
The Care Act outlines:
- the way in which local authorities should carry out carers’ assessments and needs assessments (for the looked after person)
- how local authorities should determine who is eligible for support
- how local authorities should charge for both residential care and community care
- if they should charge for carer support and
- the local authority obligations.
It reforms how the law works, prioritising individual wellbeing for adults with care and support needs over the age of 18, with a particular focus on person-centred practice and outcomes, putting people in control of their care and support.
The assessment and eligibility process is one of the most important elements of the care and support system. The assessment is one of the key interactions between a Local Authority and an individual, whether that is an adult needing care or a Carer.
The Act says that if a child, young carer or an adult caring for a child (a “child’s carer”) is likely to have needs when they, or the child they care for, turns 18, the Local Authority must assess them if it considers there is “significant benefit” to the individual in doing so. This is regardless of whether the child or individual currently receives any services (Department of Health 2015).
Under the Care Act, you are entitled to a carer’s assessment where you appear to have needs for support and you will be entitled to this support if you meet the national eligibility criteria.
The person you care for is entitled to a ‘needs assessment’ if they appear to have needs for care and support.
It also gives Local Authorities a legal responsibility to cooperate, and to ensure that all the correct people work together to get Transition right. It makes clear that the Local Authority can combine any “Transition” assessments with any other assessment being carried out for some other person (provided all parties agree).
For more information go to the Carers UK website
The Equality Act, 2010
Disability is considered a protected characteristic under the Equality Act 2010. Therefore it is unlawful for an education provider to discriminate directly or indirectly against a pupil, prospective pupil, or in some cases, former pupil either, on the basis of their disability.
The duty applies to all education providers – for example, early-education providers (nurseries), Independent schools, state schools and further / higher education colleges.
Disability is defined in Section 6 Equality Act 2010 as:
‘a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities’.
- Normal day-to-day – activities that people do on a regular basis
- Long-term – the impairment should have lasted or should be expected to last at least a year
- Substantial – not minor or trivial
- Physical impairment – includes sensory difficulties such as visual or hearing impairments
- Mental impairment – includes learning difficulties, autism, dyslexia, speech and language difficulties, attention deficit hyperactivity disorder (ADHD)
- Some specified medical conditions, such as HIV, multiple sclerosis and cancer are all considered as disabilities, regardless of their effect
Unlawful discrimination can apply to every aspect of school life. It covers all school activities, such as:
- extra-curricular activities
- leisure activities
- after-school clubs
- homework clubs
- sports activities
- school trips
- and school facilities
The Equality Act 2010 sets out ways that a disabled person may be discriminated against.
- Unfavourable treatment arising from disability: when a school treats a pupil badly because of something connected to their disability, such as not allowing their assistance dog into the school or penalising them for needing time off for medical appointments, and the school does not have a good reason for the treatment that is proportionate
- Direct discrimination: when the school treats the pupil worse than a non-disabled pupil in a similar situation because of their disability
- Indirect discrimination: where a school has a particular policy or way of working that has a worse impact on disabled people compared to people who are not disabled. For example, a school providing application forms in a format which is not wholly accessible to disabled pupils, such as those with a visual impairment. This is unlawful unless the school can show that there is a good reason for the policy and it is proportionate
- Failure to make a reasonable adjustment: schools should make reasonable adjustments to policies and practices so disabled pupils are not substantially disadvantaged compared to those who are not disabled. What is reasonable depends on the facts –check out Chapter 6 of this Equality and Human Rights Commission guidance to help you work this out.
- Harassment: when the pupil is treated by a staff member in a way that makes them feel humiliated, offended or degraded. For example, a teacher shouting at a pupil for not completing their work when it is a consequence of their disability that they cannot perform tasks at the same pace as other students
- Victimisation: when the pupil is treated badly because they or their parents have made a complaint of discrimination under the Equality Act 2010. For example, a school gives a pupil a fixed-term exclusion because they’ve complained about a disabled friend being discriminated against.
There is more information about each type of disability discrimination on the Equality and Human Rights Commission website.
Additionally, there are certain circumstances where an education provider is expected to take positive steps to ensure that disabled pupils have equal access to education and the provision of services. It is called the Public Sector Equality Duty and means the school has to consider the need to eliminate discrimination, advance equality of opportunity and foster good relations.
The Alliance for Inclusive Education’s (ALLFIE) website has resources which relate to discrimination, including a report on education and training providers’ duty to develop Accessibility Plans to address physical and other barriers to disabled pupils’ learning.
The Mental Capacity Act, 2005
The Mental Capacity Act (MCA) is designed to protect and empower people who may lack the mental capacity to make their own decisions about their care and treatment. It applies to people aged 16 years and over. It covers decisions about day-to-day things like what to wear or what to buy, or serious life-changing decisions like whether to move into residential care or have major surgery. The right of young people to make a decision is subject to their capacity to do so as set out in the MCA. The underlying principle of the Act is to ensure that those who lack capacity are empowered to make as many decisions for themselves as possible, and that any decisions made or actions taken on their behalf are done so in their Best Interests.
The MCA says:
- assume a person has the capacity to make a decision themselves, unless it’s proved otherwise
- wherever possible, help people to make their own decisions
- do not treat a person as lacking the capacity to make a decision just because they make an unwise decision
- if you make a decision for someone who does not have capacity, it must be in their best interests
- treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms
The MCA also allows people to express their preferences for care and treatment, and to appoint a trusted person to make a decision on their behalf should they lack capacity in the future.
Decisions about Mental Capacity should be made on an individual basis, and will vary according to the nature of the decision and in the light of the circumstances at the time. You cannot just say that someone lacks mental capacity generally.
For more information go to NHS website
Click the following link to download the Mental Capacity Act: Code of Practice