CDC Digest
The voice of the disabled children’s sector
February 2017
Dear All,
Spring is nearly here at the Council for Disabled Children and with it, as
always, brings a time for new beginnings and reflections.
In our new beginnings we are getting ready for the year ahead. In
the Digest you will see lots of information on new resources and new
members. Do keep looking at our new(ish) website for updates on these.
In reflections, for me, I have been looking in more detail at the lives
of disabled children placed away from home. Last summer, following
a request from Minsters at the Department of Health I had the role of
working across the systems looking at the needs of children with both
learning disabilities or autism and mental health needs in inpatient
services. My review was published last week and you can read more
about it further in the Digest.
As part of the recommendations of the review, and following Sir Martin
Narey’s review of residential children’s homes last year, I have now
launched a review with the Department for Education into children in
residential special schools and colleges. The call for evidence is live
now our website so do tell me what you think. What’s working well
and what’s not? What should we do differently and what should stay
the same? What does excellence look like in both care provision and
teaching? These are some of the most vulnerable of our children and
they deserve the very best care and outcomes. Do let me know your
views and experiences on [email protected]
In the meantime, if you want to look at some really fantastic examples
of care and support in this area do look at the Paving the Way website
at http://pavingtheway.works/
Best wishes,
Dame Christine Lenehan,
Director at the Council for
Disabled Children
Contents
Welcome to the autumn edition!
1
News from the sector
3
CDC Membership Update
5
CDC’s news update
7
SEND: New Challenges, New Opportunities - resources
9
Guest blog: Supporting Parents to Achieve the Best Outcomes 12
for their Children
by Tania Tirraoro, Special Needs Jungle
Blog: Why publish good practice guidance on EHC plans?
16
by Martin Bull, Independent Support Programme
Latest case law updates
18
by barrister Steve Broach
2
Resources
24
Training and events
27
News from the sector
Philippa Stobbs, Assistant Director of Education at CDC, gives us her
comprehensive take on current issues in the SEND sector.
Our experience is that funding arrangements are usually complicated and are
sometimes used to ‘blind us with science’ or used as a smoke screen. These two
pieces on new funding arrangements attempt to clarify proposals for high heeds
funding and for early years funding from an SEN and disability point of view. If they are a
bit longer than our usual pieces at the front end of the Digest, we hope they make the issues
clear.
High needs funding - what does it really mean?
A Department for Education (DfE) consultation document that came out just before
Christmas deserves some attention from all of us: it is the second round of consultation on
the high needs funding formula, High needs national funding formula and other reforms:
Government response and new proposals for consultation – stage 2. This consultation
sits alongside a further round of consultation on a national approach to funding for schools.
Whilst there has been a lot of discussion in the news about the impact of changes to school
funding, there has been little about the high needs funding; and there is some good news
here.
Funding is currently allocated by central government to local authorities in three blocks:
schools, high needs and early years. Local authorities agree with their schools forums the
local formulae through which the money is then distributed to schools and early years
settings. Local authorities are also responsible for distributing the high needs funding to
meet the needs of children and young people with additional needs, including special
educational needs. In some areas, special educational provision has traditionally been made
through higher numbers of pupils in special schools, in others more children have had
their needs met in mainstream. With special school places costing more than mainstream
places, the allocation of high needs funding has reflected historic patterns of placement
rather than levels of need.
In the first round of consultation on high needs funding, the government indicated its
intention to move towards allocating this funding to local authorities in a way that is better
linked to levels of need. The overall funding pot was expected to remain the same, so some
local authorities were expected to win and some to lose.
During the first round of consultation, many of us made the point that no local authority
should lose a penny of high needs funding. This is for at least two important reasons:
firstly, local authorities have commitments to many children and young people with SEN
that may last some way into the future; secondly, local authorities have taken on new
responsibilities for the education of young people up to the age of 25, a responsibility that
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3
may not originally have been thought to make a significant difference to expectations of
local authorities, but recent case law, in particular the Ryan case, tells us differently.
The first bit of good news, in the second round of consultation, is that there is a rise in the
national high needs budget of £90 million this year and further rises up until 2020. The
effect of this increase is that no local authority will lose high needs funding as we move to
an allocation based more closely on levels of need. This is really welcome.
To continue reading this story, go to:
https://councilfordisabledchildren.org.uk/news-opinion/news/high-needs-fundingwhat-does-it-really-mean
An early years funding formula
There are some key funding considerations in the early years documents that were
published in December, Early years funding: changes to funding for three- and fouryear olds: Government consultation response, and an accompanying document, Early
years national funding formula: Operational guide. These documents are published
following an earlier consultation so, whilst they do not invite responses, they really need
our attention. As with the high needs funding consultation, these documents look at
both ‘universal’ funding and specific aspects of funding for young children with SEN and
disabilities. Again, as with the schools funding, there has been much discussion in the press
about the mainstream aspects of early years funding but there has been less about the
SEN and disability aspects.
Firstly, the DfE has recognised that the current early years funding system ‘does not serve
the needs of children with special educational needs and disabilities consistently’ and is
going ahead with two key proposals on which they consulted earlier: a Disability Access
Fund and a local SEN inclusion fund.
The Disability Access Fund (DAF) will provide a small amount of additional funding to
enable early years providers to anticipate and make adjustments, and will increase their
capacity to support disabled children. Providers will receive an additional annual amount
for young children in receipt of Disability Living Allowance. DAF will be introduced in April
2017 and will provide £615 per year for eligible children.
To continue reading this story, head here:
https://councilfordisabledchildren.org.uk/news-opinion/news/early-years-fundingformula
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CDC Membership Update
New members
A very happy new year to all CDC members, old and new! Here’s to a fantastic year for you
all! Since the last Digest we’ve had a host of new additions to the CDC family. A
big welcoming shout out to our newest members:
C
lick to
apply
• Downright Excellent - provide weekly speech and language therapy
for CD
C
sessions and quality play experiences for children with Down’s syndrome mem
bershi
p
and their siblings, plus education and support for parents and carers.
•
•
•
•
•
•
•
•
Embrace Wigan and Leigh - a local user-led organisation which advocacy
support, activities and information for people with any disability of any age
Single Parents Support - host a special needs group for single parents and offer tailored
support.
The Crusaders Union (Urban Saints) - provide a learning and development programme
for church-based children’s and youth workers to create a place of inclusion and
belonging for children and young people with SEND.
Little Miracles - provide activities and support to families that have children with
additional needs, disabilities and life limiting conditions.
Caxton Youth Organisation - focuses on improving services, delivering independent
living and social skills for young people with disabilities in Westminster, London.
Equal Lives - offer advice and advocacy, peer support, payroll, support planning and PA
recruitment support in the East of England.
The Rose Road Association - offer short breaks, a community outreach scheme, activity
schemes and other services for children and young adults with multiple disabilities.
Ealing Mencap - represents the interests of people with learning disabilities and their
carers within the London borough of Ealing. They run a range of projects to help people
with learning disabilities and their carers.
About the CDC membership
At CDC we know that we are stronger and have a bigger voice if we’re together. At the heart
of CDC is the membership– a collective of over 200 voluntary or community organisations
that represent the various facets of the SEND sector. Membership to CDC is free and open
to any voluntary organisation or community interest company who works with or for
disabled children and young people with SEN.
If you’re not already a member, check out the range of benefits here:
http://councilfordisabledchildren.org.uk/members/benefits If you would like to know
more about CDC membership, please email Daphne Henderson-Figueroa on
[email protected]
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5
Next CDC Members Meeting
The next CDC Members Meeting will be taking place
at the end of February at the National Children’s
Bureau offices in central London. You should have
already received your email invite but if you haven’t,
please email Daphne on [email protected].
Meetings are for nominated representatives of member
organisations so if you’d like to come along please make
sure you register online via the link in your email.
If you’d like to come but not sure if you’re a member,
check our member list here.
Conference: Making Participation Work
We are delighted to invite you to our third national event to promote and develop young
people’s strategic participation. This is part of a new national participation programme run
by the Council for Disabled Children and KIDS.
Please join us as we explore how national and local participation of children and young
people supports practitioners and professionals to effectively embed SEN and disability
legislation throughout their organisation.
This event is being co-delivered with young people to
share lessons and learning, good practice, experiences and
challenges to making young people’s strategic participation
a success.
We are keen to invite colleagues from the South West and
West Midlands regions, as well as anyone else who would
like to join us for the day. The conference would be most
helpful to participation professionals in local authority
and CCG roles but anyone interested in developing their
participation work is very welcome to attend.
Date: 24 February
Location: ETC Venues, London
Time: 9.30-16.30
Tickets are free and can be booked by clicking here. For all enquiries
please email Jo on [email protected].
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What’s new?
Lenehan review calls for urgent action
This month the Department of Health published a new review into the care of disabled
children and young people with challenging behaviour and complex mental health needs
carried out by CDC Director, Dame Christine Lenehan.
The review, called These Are Our Children, is calling for urgent action at a national level to
prevent these children being institutionalised at an early age, at huge cost to the taxpayer
and with low ambitions for improving their lives.
The review drew evidence from civil servants, clinicians, managers, parents and young
people. It found that despite numerous Government initiatives, accelerated since the
abuse of people with learning disabilities was uncovered at Winterbourne View, there is
not a clear vision for the treatment of children with complex needs involving challenging
behaviour and a mix of mental health problems, learning disabilities and autism.
Christine said:
“The system is failing children with the most complex health needs. It doesn’t intervene
early, it doesn’t recognise their rights to childhood, it doesn’t support families to the
level that they need, and when those children then fail at every level of the system to be
supported, they end up in very expensive institutional care and for lots of them we don’t
understand the way out. If we don’t work with children and young people on this issue then
we will just create the next generation of people who go into places like Winterbourne.”
Submit your evidence to a new review into residential special schools
A call for evidence has been recently launched for a new review by Dame Christine into the
quality of care of residential special schools due to be published later this year.
She has been asked by Edward Timpson, Minister of State for Vulnerable Children and
Families, to lead an independent review into the experiences and outcomes of children and
young people in residential special schools and colleges. The review will complement Sir
Martin Narey’s report reviewing children’s residential care in England published last year.
Sir Martin recommended that residential special schools should be looked at separately so
Dame Christine’s review will include consideration of how residential specialist provision
supports children and young people with complex needs. It will recommend the practical
action that government departments and other agencies can take to support positive
experiences and outcomes for these children and young people.
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7
The review will explore:
•
•
•
•
•
•
•
•
the characteristics of the children and young people currently in residential special
schools and colleges
how and why these children and young people come to be placed in residential special
schools and colleges
the pattern of provision across the country and how it is commissioned and procured
what good quality support looks like for these children and young people, both pre- and
post-placement (including the role of early intervention, family support and community
services)
the experiences and outcomes of these children and young people and their families,
and how these can be improved
how schools and colleges are supported to meet the needs of these children and young
people by all agencies
how effectively the workforce in residential special schools and colleges meets the
needs of these children and young people
destinations for these children and young people
To ensure that this review is informed by as wide a range of views and evidence as possible,
a call for evidence has been launched to look at the areas set out above. This is open
to people working in residential special schools and colleges; children and young people
attending residential special schools and colleges and their parents or carers; and children,
young people and adults who have left residential special schools and colleges. Also invited
to submit evidence are local authorities, representative bodies from across the sector and
academics with an interest in this area.
For more information please visit https://consult.education.gov.uk/special-educationalneeds-and-disability-division/lenehan-review/ You can submit your responses to Lenehan.
[email protected] along with any other enquiries about this call for evidence. The
deadline for submissions is 17 March 2017.
Improving Lives The Work, Health and Disability Green Paper
A Joint Department of Work and Pension and Department of Health Green Paper is
consulting on proposals on how to close the employment gap between disabled people,
those with long term conditions and non-disabled people. The paper states an aim to make
supporting disabled children and young people into employment a key element of the
transition into adulthood.
It includes proposals about work experience programmes, improving access to
apprenticeships and ensuring supported internships are available for all young people with
EHC Plans. The Consultation closes on 17 February 2017.
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SEND: New Challenges, New
opportunities
Matthew Dodd, Principal Officer for Education at CDC, gives you the lowdown on our
annual conferences plus links to all the presentations you might have missed
CDC’s national conference programme is in its fourth year and we are pleased that the two
events we held in January 2017 were the most successful to date. Two and a half years after
the introduction of the Children and Families Act, and just over one year before the April
2018 deadline for transferring statement of SEN into EHC plans, we decided to focus on
new challenges and new opportunities.
We know that taking a whole day out of the busy
lives of parents, professionals, and charities to attend
a conference is a big ask, so we make no apologies
for packing the agenda until it is ready to burst. The
morning session included presentations from the
Department for Education, NHS England, the SEND
Tribunal and Ofsted and the Care Quality Commission.
The afternoon workshops covered continuing care,
young people’s participation in EHC plans, the Lenehan
Review of provision for children with complex needs,
the latest case law, and the Mental Capacity Act.
We undoubtedly identified some new challenges: our colleagues in schools are struggling
to include children with special educational needs within a highly academic curriculum;
our colleagues in the NHS are being asked to choose between undertaking assessments for
EHC plans and other clinical needs with no additional resource; and a number of authorities
are concerned they won’t have the capacity to deliver on the April 2018 deadline.
But there were new opportunities too: the new Ofsted and CQC inspection framework is
focusing minds in local areas and has the potential to
develop a treasure trove of good practice; the pilot of
the SEND Tribunal making recommendations in relation
to the health and social care elements of EHC plans has
shown positive results; and the SEND sector continues
to be absolutely packed with passionate people.
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9
CDC always champions the voice of children and young people and we were proud to offer
two workshops that featured direct input from young people themselves:
• embedding young people’s voice in EHC plans, with members of the Department for
Education’s policy influencing, Flare; and
• understanding the Mental Capacity Act with Face Front Inclusive Theatre
So when our delegates told us that the young people’s input was “excellent”, “made it
real”, “had a huge impact”, and that it was “a privilege” to be working with them, we are
especially pleased that professionals and practitioners are finding these events valuable.
“I would like to thank you and the for the opportunity to attend the conference
yesterday. I would not be able to afford the ticket and gain such valuable information
to support my children and share with other parents of children with a wide range
of disabilities. Thanks to all the team and the valuable work they do.”
- feedback from a parent
“It has been an enriching experience, listening to so many wonderful professionals
who are passionate about disabled children and working hard to make sure disabled
children and their families are being well supported and getting good outcomes.”
- feedback from a professional
We have made all the materials from both the morning sessions and the afternoon
workshops available online here: https://councilfordisabledchildren.org.uk/helpresources/resources/cdc-national-conference-resources
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One-day training packages
available:
1.It’s My Life! Decisions, Capacity and EHC Plans
Learn practical person-centred approaches for involving disabled
young people and those with SEN in decision-making
2.Outcomes and EHC plans: a guide from A to K
This training session looks at how to identify outcomes and
develop EHC plans that work.
3.Making Opportunities Inclusive
Your service may be helping children and young people, but is it
also fully accessible and inclusive?
4.Social care: national practice, local solutions
This training addresses the key questions faced by social care
services and will support you to develop local solutions and
shares examples of national practice.
5.Your Rights, Your Future: making sense of the law
This is an interactive training session designed for any
practitioner working with children and young people on the SEND
reforms.
BOOK NOW
For a quote please contact us on 020 7843 1900 or [email protected]
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http://councilfordisabledchildren.org.uk/our-services/training-support
11
Supporting parents to
achieve best outcomes for
their children
by Tania Tirraoro, CEO of Special Needs Jungle
Tania is our guest blogger from parent-led information and resources website, Special
Needs Jungle. She gives her personal view on how parents can be supported to ensure
best outcomes for their children and highlights that the sector still has a long way to go to
ensure parents have the information they need. You can find Special Needs Jungle online
here: https://www.specialneedsjungle.com/
I’ve just been to the last ever annual reviews for my two ASD sons. They both hope to
head for university this September where Education, Health and Care plans (EHCPs) are no
longer legally enforceable.
That said, it was still important to update their outcomes for the end of the school year
and to also ensure longer-term aspirations were clearly written out, along with the detail
about the support needed to get them there. Legal or not, university disability support
departments are finding these accounts useful as a guide to setting up appropriate help.
Some outcomes progress and change every year, but one for my younger son, being able
to independently organise a project so that he stays on track, has been a struggle since he
began school. So is this an outcome or an aspiration? Or both?
Terminology matters, so EHCPs need to make clear what is a short-term goal for a child to
reach and what is a longer-term aspiration. For example, wording such as “By the end of
Year x, y will have achieved….” So I’m glad to see some good tips in the CDC’s new EHCP
examples of good practice.
But that’s so much further down the road than lots of families are even getting right now.
I’d hoped that, two years on, the difficulties arising from the swift introduction of the
SEND reforms would have been overcome. How hard could it be to get to grips with the
new law and abide by it? Granted, the SEND Code of Practice was light on the ‘how to’, but
it was pretty clear that the government’s intention was to put families at the heart of the
assessment process and to make provision fit the child, not the other way round.
Now, in early 2017, it saddens me to admit that, at the moment, the naysayers who warned
that it was all going to go to hell in a handcart were right. Local authorities do not, by and
large, seem to have grasped the basic tenets of the reforms so that everything they do ends
up with better outcomes for children and families. They have, instead, moulded the law
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12
into their own set of “alternative facts”, making everything and everyone bend to fit how
they want things to be done.
But just because that’s where we currently are, it doesn’t mean that’s what we have to
accept. If the tumultuous world changes of 2016 have taught us anything, it’s that ordinary
people can change the comfortable structures that only benefit those who already have the
power. Local authorities have got away with it so far because parents are too hard-pressed
caring for their disabled children and making sense of what’s law and what’s made up, to
march to the Department for Education (DfE).
When your child has been excluded, has inappropriate or no support at school or can’t find
a suitable place to start with, few have time to think of the bigger picture, even if they know
what that’s supposed to be.
This is why parental advocacy is so important. New parents entering the dense jungle of
special educational needs provision or the transfer to EHCP, are not given an easy-to-follow
road map. That’s why at Special Needs Jungle, we have developed our Special Needs Jungle
Flow Charts to help guide families through the process from SEN Support through to what
to do it if all goes wrong.
But parents need more than this and that’s why the government and CDC developed
Independent Supporters to guide parents through the statutory assessment process. Only
parents report to me they often aren’t finding out about them, despite, apparently 99%
of LAs telling the DfE that they do inform parents about the service. It’s also clear from
parents contacting me that many are not even finding the established IASS (formerly
Parent partnership) or locating the information they need, in the way they can easily
understand it.
And that’s the key: there is plenty of information around, including online advice and legal
information, but only for those web-savvy parents who can access it. And that’s not good
enough. Parents tell me that when they do have an Independent Supporter, they find it a
great help. However, it’s unknown if it will continue to be funded after next year, when the
government support for implementation ends.
Parents shouldn’t have to become experts in SEND law to get the outcomes their children
need and I strongly believe the IS service should be made permanent along with the
required funding. This will allow providers to plan for the future, rather than just year to
year.
There is not just one single way to support parents in achieving better outcomes for
their children. However, there is only one legal structure and locally, SEND staff in local
authorities, health and social care must follow it. Then they must collaborate with schools
and advocacy providers, using evidence from experience to provide clear and factual
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13
information, available in a variety of formats. Only then parents will be properly supported
to fulfil their own role as full partners at the centre of the process in helping their children
have the best future they can.
Key information and resources for parents
The links below have been together for parents, carers and professionals working with
families.
•
Contact a Family provide direct advice and support services to parent carers. They host
a free national helpline which is open Monday to Friday between 9.30am and 5.00pm:
0808 808 3555 www.cafamily.org.uk/our-helpline/
•
Special Needs Jungle is parent-led website providing parent-centred information,
news, resources and blogs about SEND https://www.specialneedsjungle.com
•
There are Information, Advice and Support (IAS) services in every local area in
England who provide dedicated and impartial advice to young people and parent
carers. You can find contact details for your local IAS by following the link:
www.councilfordisabledchildren.org.uk/find-your-local-ias-service
•
Independent Support provides confidential and impartial advice to young people and
parent carers who are moving from a Statement of SEN to an Education Health and
Care plan. You can find contact details for your local Independent Supporter here:
https://councilfordisabledchildren.org.uk/find-my-is-provider
•
There are over 150 local Parent Carer Forums across England which are used by over
52,000 parents every year. You can find your local group using the link:
www.nnpcf.org.uk/who-we-are/
•
IPSEA offers free and independent legally based information, advice and support to help
parents get the right education for children and young people with all kinds of special
educational needs (SEN) and disabilities. They host an information service, advice line
and tribunal helpline as well as training for parents, schools and local authorities
www.ipsea.org.uk
•
Family Fund is the UK’s largest charity providing grants for disabled children and their
families. Last year they provided financial support to over 70,000 families. Find out
how they can help you by following the link below www.familyfund.org.uk/
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BOOK YOUR
TRAINING
Outcomes and EHC
plans: a guide from
A to K
At CDC we offer a set of high quality training
packages for your organistion with our staff
team dedicated to delivering the highest
possible quality of service. We bring a rigorous
understanding of the legal and policy frameworks
allied to an understanding of how to make it work
at a local level. All of our training reflects CDC’s
core values: that children, young people and their
families must be at the heart of everything we do.
We work with government, local authorities
and the voluntary sector to support the
implementation of the reforms and secure good
outcomes for children and young poeple. Our
approach is rooted in research carried out with
children, young people and their families.
Our current training offer includes how to make
your settings more inclusive, understanding the
Children and Families Act 2014, and safeguarding
disabled children. A package tailored specifically
to the needs of your organisation can be also be
discussed with our trainers by emailing
We can deliver
all one-day
training on request
to your organisation
either on site or
at our offices in
London
Who is the training for?
Professionals working in
children and adult services
Local authority SEND
teams
Teachers, social workers
and health professionals
Service providers
Commissioners
Voluntary sector services
Professionals involved in
informing, developing and
coordinating EHC plans
[email protected]
15
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15
“Why publish good practice
guidance on EHC plans?”
by Martin Bull, Independent Support programme
CDC and Independent Support recently published an EHC plan good practice guide and
exemplar resource to help practitioners write good quality EHC plans. Martin from the
Independent Support team looks at how the resource came about, and why it was so
needed.
There has been a bit of speculation about the recently published ‘Education, Health and
Care plans examples of good practice’ and mixed views on what we have published and
why we have produced it in the first place. So I hope my article here will update you on
Independent Support and how this guidance came about.
Since 2014 I have been leading the Independent Support (IS) programme at CDC and 3
years on I continue to respond to many enquiries from local service providers, parents and
young people asking me about the programme. Many expressing support and thanks and
some asking to be involved. Some rightly challenging me on what we do, and others keen
to know about the future and how CDC can support sustainability when funding comes to
an end. But looking back at what we have done and achieved I think we have made some
really good progress with the right intentions.
To date we know that around 80,000 people have experienced support through the
programme since the start of the reforms, in particular, support as parents and young
people navigate through the EHC planning process. There are over 100 case studies on
the CDC website which are based on the real life stories of those who have received
Independent Support, or benefited from new local partnership arrangements. There are
some insightful messages here so please do take a look. Over 3,000 people have taken up
our training which has helped to create a national skilled workforce and we have seen local
authorities build new partnerships with local partners that have helped to ensure their
local offer delivers good outcomes for the local population.
But we must not be complacent. There is always more to be done and that is my driving
force. All this at a time when local funding is being hit hard and front line services are
facing a reduction in their budgets.
Those that have met me will know I’m quite up front about my feelings so will confess here
that one of my biggest challenges since the start of the reforms has been identifying and
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16
agreeing with a range of stakeholders and government on what a good EHC plan should
actually look like. Not an easy task and not a task that anyone could have done back in
2014 when the reforms were first introduced. We know from our providers that for some
parents and young people the tasks required in the development of an EHC plan will be
straight forward. However, for a lot of others the process is not straightforward and they
will need help to ensure they get the best outcomes for them. To achieve this, sharing good
practice is key.
This was the driving force behind our decision to develop a practical resource of this
nature. We wanted to offer some guidance that could help the IS workforce and IAS services
improve quality and drive up standards when supporting parents and young people with
the drafting of content and providing feedback on draft EHC plans. We wanted to create a
resource that would be helpful for others to see and use such as carers, schools, colleges,
local authority plan coordinators and Parent Carer Forums, to name just a few.
So we started by requesting examples of EHC plans from suppliers of Independent Support.
We received over 150 EHC draft plans. Then we commissioned an analysis of 45 plans to
identify examples of good practice. At the same time CDC developed an example of an EHC
plan with the College of Occupational Therapists as part of our work with the Care Quality
Commission. We also approached the SEND advisors, commissioned by the Department
for Education, to simultaneously collect examples of good practice from their work with
individual local areas. We brought all this information and learning together to create one
single resource that we could agree upon as being good practice.
So a lot of work and effort has gone into developing this resource and we have received
lots of positive feedback from those who work directly with parents and young people.
However, I will confess it’s not been easy at times to pull together.
The hardest part perhaps was getting everyone involved to agree on what good practice
is and reach an agreement on the final document that is not advocating any particular
approach to meeting needs.
A few may say this guidance has come very late in the day but many others will recognise
that you need time in order to produce something based on real examples that is going
to make a difference. I think this guidance will be really useful to many organisations and
individuals who are affected by the reforms and I hope we will see more of this sort of
advice and support in the year ahead - as we as a collective learn from our experiences
working in the SEND field and become more familiar with the requirements of the reforms
and the EHC planning process.
To download your copy of the “Education, Health and Care Plans: Examples of good
practice” guide, please go to our website:
www.councilfordisabledchildren.org.uk/EHCP-exemplar
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Overview of the latest case law
Our series of case law reviews on judgements relating to special educational
needs and disability continues with three case law review summaries
compiled by barrister Steve Broach from Monckton Chambers. To read the
full accounts including advice on what the judgements mean to children,
families and local authorities, click on the link at the end of each summary
Case law update no.15
East Sussex CC v TW [2016] UKUT 528 (AAC)
The Upper Tribunal gave guidance on when social care and health provision becomes special
educational provision under the Children and Families Act.
Case overview
The Upper Tribunal (‘UT’) allowed an appeal by a local authority against a decision of the
First-tier Tribunal (‘FTT’) in relation to an EHC Plan for a young person with a range of
needs including autistic spectrum disorder and ADHD. The UT gave important guidance on
when social care and health provision becomes educational provision under section 21(5)
of the Children and Families Act 2014.
Decision
The young person, T, is registered at a specialist independent day college and lives in a
rented flat with domiciliary care.
There were five questions for the FTT:
1. Whether the description of the primary causes of T’s needs should centre on his autism
and related anxiety. The FTT decided that it should.
2. Whether T’s back problems were part of his educational needs. The FTT held that they
were not.
3. Whether T required a waking day curriculum. The FTT decided that he did.
4. Whether the domiciliary care provided to T at home was educational provision. The
FTT held that it was.
5. Whether the package of support at home should be included within Section I of the
Plan. The FTT held that it should.
The UT dealt first with the question of the divide between special educational provision
and social care provision. The UT highlighted that under section 21(5), social care provision
which educates or trains a young person such as T is to be treated as special educational
provision, and not as social care provision. The UT referred to this as ‘deemed special
educational provision’.
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The UT made clear that deemed special educational provision ‘properly belongs in
Section F of the plan and not in Section D1’ and emphasised that ‘the local authority must
secure the provision under section 42(2)’ (of the Children and Families Act 2014). The
UT highlighted that where a local authority had not correctly identified deemed special
educational provision, the FTT must move it to Section F. The UT highlighted that the FTT
has no power to change in any way provision which properly remains social care provision.
On the waking day curriculum issue, the UT held that this term ‘means only that the
person’s special educational needs are such that they call for special educational provision
to be delivered beyond ‘normal hours’’.
On the question of Section I of T’s plan, the UT held that the FTT had erred in including
domiciliary care at home as this did not constitute an institution ‘to be attended by’ T, as
the regulations require. The UT held that T’s home could not be an ‘institution’ within
the meaning in the regulations. This has obvious implications for home programmes of
education, as discussed below.
The UT also gave guidance on the degree of specificity necessary in an EHC Plan. The
UT cited the well known case of L v Clarke and Somerset CC [1998] ELR 129, stating that
‘The real question...in relation to any particular statement is whether it is so specific and
so clear as to leave no room for doubt as to what has been decided is necessary in the
individual case’. Although the UT accepted that some degree of flexibility may be necessary,
it was not prepared to accept as a general proposition that flexibility is permissible when
provision is being made at a special school or college, although this is a factor which can
be taken into account.
Finally, the UT highlighted that although the FTT had inserted a reference to ‘supported
living’ into Section I of T’s EHC Plan, there is no general definition of this term in the
legislation.
What this means for children, young people and families
This UT decision emphasises the importance for parents and young people of correctly
identifying whether provision which is generally thought of as social care or health provision
is in fact special educational provision under section 21(5). The test is simply whether the
provision in question educates or trains the child or young person. If it does, then the UT
gives clear guidance that it should be set out in Section F of the EHC Plan and provided
under the duty in section 42(2). This is an issue for the FTT to resolve for itself in the event
of an appeal by the parent or young person.
On the thorny issue of a need for a waking day curriculum, parents and young people
seeking residential placements need to be aware that the need for such a curriculum
does not necessarily justify residential provision. It may be necessary to show on the facts
This reference to Section D would seem to be an error, as section D must contain ‘The child or young person’s social care
needs which are related to their SEN or to a disability.’ Any social care provision falls within section H1 or H2 of an EHC Plan,
see the SEND Code of Practice at p161-162 and regulation 12 of the SEN and Disability Regulations 2014.
1
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of a particular case why even an extended day cannot be provided without overnight
accommodation. Equally it may simply be impracticable for a child or young person to
attend a particular setting otherwise than on a residential basis, and if that is the only
setting which can appropriately meet the child or young person’s needs then it ought to be
funded by the local authority.
The decision has led to real concerns about the approach to the inclusion of home
programmes within EHC Plans. It is very difficult to see how a home programme can now
be included within Section I, as the child’s home is not an ‘institution’ which can ‘be
attended’. It may be that the only alternative is to include the provision to be made under
a home programme within Section F of a Plan, relying on section 61 of the 2014 Act for
the power for this provision to be made at home. There would however need to be clear
agreement as to precisely which provision in Section F of a Plan will be made at home to
protect the child and family’s position.
Parents and young people will no doubt welcome the clear reminder in the UT’s judgment
of the importance of specificity in EHC Plans, so that there is ‘no room for doubt’ as to what
needs to be provided.
Implications for local authorities and other public bodies
Local authorities will need to ensure that careful consideration is given in every case to
whether social care provision is in fact deemed special educational provision and should
appear in Section F of the plan. Similarly, local authorities will need to work with their health
partners to ensure that any health provision which is deemed special educational provision
is moved to Section F of the plan. The responsibility to arrange deemed special educational
provision rests with the local authority (see SEND Code of Practice at para 9.76), whether
or not this provision would normally be seen as social care or health provision.
Local authorities will also need to heed the UT’s guidance on the waking day curriculum
issue and the need for specificity, as set out above. The decision also has guidance on how
to draft Section I for young people, particularly the need to specify a type of ‘institution’ (if
appropriate) and the requirement not to include terms such as ‘supported living’ without
proper definition of their meaning.
Local authorities will have to work with the families (and potentially the First-tier Tribunal)
to resolve how to include home programmes within Plans otherwise than in Section I,
unless a way can be found to distinguish this decision. As suggested above it may be that
this can be achieved through Section F.
To read this update online please go to:
http://councilfordisabledchildren.org.uk/case-law-15
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Case law update no.16
R (O) (by her litigation friend H) v Peterborough City Council [2016]
EWHC 2717 (Admin)
Child protection decisions by local authorities need to be based on a proper understanding
of key legal concepts, including ‘neglect’, and must be supported by the necessary evidence to
show that the relevant legal test is met.
Case overview
The High Court quashed a local authority’s decision to place a child on a child protection
plan because the local authority had failed to understand the concept of ‘neglect’, or
alternatively the application of that concept in the case had been irrational.
Decision
This case is a rare and important example of the High Court quashing a decision made
by a local authority exercising its child protection functions. It emphasises that although
the courts will place significant weight on the professional judgment of social workers and
others involved in these decisions, Judges will intervene if the decisions breach public law
principles such as rationality.
The case concerned O, a girl born in December 2007 who in 2013 started to refuse to eat
or drink, meaning she had to be fed through a nasogastric tube. O was initially treated as
a child ‘in need’ pursuant to section 17 of the Children Act 1989. However a dispute arose
between the local authority and O’s mother about appropriate medical treatment for O
and in due course a decision was taken by the local authority that a child protection plan
needed to be put in place under the category of ‘neglect’. O and her mother challenged
that decision through an application for judicial review. The child protection plan remained
in place for a year before it was withdrawn in March 2016. A challenge to the initial
decision to instigate enquiries under section 47 of the Children Act 1989 was also made,
but permission to apply for judicial review was refused on this ground.
The court considered the relevant provisions of the statutory guidance, Working Together
to Safeguard Children (March 2015). The Judge emphasised that under the guidance,
decisions to place a child on a child protection plan are to be made at a child protection
conference. The test for a plan to be put in place is that the child is likely to suffer significant
harm (see flowchart 4, p38 of Working Together).
Importantly for the outcome of the case, Working Together defines ‘neglect’, being the
relevant category of potential harm in this case, as ‘The persistent failure to meet a child’s
basic physical and / or psychological needs, likely to result in the serious impairment of the
child’s health or development’. An example of ‘neglect’ given in the guidance is failing to
‘ensure access to appropriate medical care or treatment’.
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CDC
The Judge reiterated that a decision to place a child on a child protection plan is ‘in principle
amenable to judicial review’. He cited an earlier case, R v Hampshire CC ex p H [1999] 2 FLR
359, for the principle that such challenges are likely to be rare and may need to be confined
to ‘the exceptional case which involves a point of principle’. This is because ‘all concerned
in this difficult and delicate area should be allowed to perform their task without looking
over their shoulder all the time for the possible intervention of the court’.
The Judge accepted the submissions for O’s mother that the fact the plan had been
withdrawn did not make the claim academic. This is because the fact that a plan had been
put in place could have ongoing detrimental effects for the mother, who may have wanted
to work with children.
The Judge held that even making ‘due allowance’ for the nature of the documents
challenged and ‘the wide margin of appreciation which a [local authority] enjoys in this
important area of child protection, nevertheless at the end of the day the defendant still
has to ask the right questions and arrive at conclusions in answering those questions which
are not irrational.’
Neither of this principles had been met in this case. The Judge held that there was ‘no
evidence’ that what had happened was neglect by the parents. The only concern was the
dispute as to O’s need for treatment, in particular whether she should be admitted to a
particular residential facility. The Judge held that ‘far from being neglectful...the claimant’s
parents had done everything they could reasonably be expected to do to take forward the
agreed step that a second opinion should be sought’.
The Judge therefore quashed the decision to place O on a child protection plan. He also
declared that the decision and plan were ‘null and void and of no effect’. This declaration
was made in particular to help O’s parents deal with any concerns which could arise in
future in relation to the previous existence of the plan. The Judge however refused to make
a mandatory order requiring the defendant to remove all reference to the plan from the
records and notify other bodies that it was not lawfully imposed.
What this means for children, young people and families
Families with disabled children sometimes find that disputes with local authorities as to
how to meet their children’s needs may result in child protection concerns being raised.
This case emphasises that it is possible for families to challenge local authority decisions in
the child protection context through judicial review, where (for example) the local authority
has misunderstood the legal test or there is no proper evidence to support one or more
key conclusion(s).
However families need to bear in mind that the ‘wide margin of appreciation’ that local
authorities are given by the Administrative Courts in child protection cases means that a
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clear error of law will be needed for a successful challenge. Simple disagreement with the
conclusions of (for example) a child protection conference will be nowhere near sufficient
for a claim to succeed.
Families who meet the financial threshold should be able to access legal aid to fund advice
and representation in any such challenges, via solicitors with the relevant contract from
the Legal Aid Agency.
Implications for local authorities and other public bodies
Local authorities will be reminded by this judgment that decisions in the child protection
context are not somehow outside the scrutiny of the Administrative Court. Importantly, the
Judge in this case did not identify any wider point of principle but allowed the application
for judicial review because of clear public law errors in the local authority’s approach on
the facts of the individual case.
As such local authorities need to ensure that child protection decisions are made with
a proper understanding of the relevant legal test, informed by the relevant guidance.
There must then be sufficient evidence to show that the test is met. It is vital that a clear
distinction is made between cases where children are supported as ‘in need’ and cases
where the evidence of risk of significant harm justifies a child protection plan. It is also of
the utmost importance that proper records are kept to support the lawfulness of decisions
in the event of a later challenge. In this case the Judge commented on the lack of clarity in
an important aspect of the minutes from the child protection conference.
Local authorities will note that the challenge to the decision to instigate enquiries under
section 47 of the Children Act 1989 failed at the first stage, i.e. permission to apply for
judicial review was refused. This strongly suggests that the courts are more likely to
intervene later in the process, for example a decision to put in place a plan with specific
actions to protect the child, than they are to stop investigations at the outset.
To read this update online please go to:
http://councilfordisabledchildren.org.uk/case-law-16
This update is intended to provide general information about recent decisions of
the courts and Upper Tribunal which are relevant to disabled children, young people,
families and professionals. It cannot and does not provide advice in relation to individual
cases. Where legal issues arise specialist legal advice should be taken in relation to the
particular case.
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CDC
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Resources
These Are Our Children: Independent review for the Department of Health
Led by Dame Christine Lenehan, this is a review of the care of disabled children and young
people with challenging behaviour and complex mental health needs. It calls for urgent
action at a national level to prevent these children being institutionalised at an early age,
at huge cost to the taxpayer and with low ambitions for improving their lives. Click to
download.
DMO/DCO Handbook
In partnership with DMOs and DCOs, CDC have developed a handbook which will help
those new to the role and also commissioners who are recruiting to the role in their area.
The handbook sets out practical tips and learning with the aim of helping DMO and DCOs,
commissioners and other professionals involved in the implementation of the health
elements of the Children and Families Act.
Decision-making Toolkit
This toolkit is a practical guide to support anyone working directly with children and young
people with SEND. It is designed to be used in partnership with young people to support
them to make their own decisions and to participate as fully as possible in decisions made
on their behalf.
Minister’s Q&A for SEND Practitioner magazine
On Monday 9 January, a Q&A between Edward Timpson and SEND practitioners was
published by SEND Practitioner magazine. You can access it here.
Traffic Light Communication Tool
Developed with disabled young people and their parents, this tool is designed to help
families communicate their worries when they got to a clinic with their disabled child.
Education, Health and Care Plans – Examples of Best Practice
We have developed some good practice guidance to support the
development of skills in writing good quality EHC plans that meet
both the letter and the spirit of the Children and Families Act 2014.
Youth justice resources
The fourth Achievement for All newsletter for the Youth Justice SEND
project is now available. It includes details of a free online learning
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platform for all professionals working with young people involved in the youth justice
system.
Young people in Youth Custody: A practice guide
This practice guide is aimed at those working to improve outcomes for young offenders
who have or may have special educational needs. Click to download.
FAQs on social care and the SEND reforms
Barrister Steve Broach has prepared advice for social care professionals in relation to the
SEND reforms. It sets out a number of frequently asked questions that have arisen through
CDC’s transforming culture and practice in children’s social care assessment programme
as well as feedback from our social care training. Click to download.
CCG Audit Tool: SEND reform implementation
CDC has developed this tool (which can be found here) to help CCGs understand and
develop their progress in implementing the SEND reforms. It will be useful to support areas
in the preparation for joint Ofsted/CQC Joint Area SEND inspections.
Short Breaks for Disabled Children: A Legal Guide
Written by barrister Steve Broach and CDC, the purpose of this guide is to
assist local authority officers and Members to understand the law in relation to
short breaks and to apply it effectively. This should assist in supporting and protecting the
provision of vital services for families. The guide also covers the duties on NHS bodies in
relation to short breaks and so will be relevant to the health partners of local authorities,
particularly Clinical Commissioning Groups.
Case Study: Supporting the role of Social Care in the SEND Reforms
Whilst the SEND reforms were being embedded into planning and practice, Liverpool
identified that there was a need for a lead for Social Care to support
local implementation. The role is designed to build local capacity and
collaboration, and to address some of the key challenges for SEND. The case
study describes the process in detail and highlights key learning for other
Local Authorities. Click to access.
The Care Quality Commission 2016 children and young people’s survey
is coming!
They’ll be asking thousands of children and young people about care they
received in hospital. Young people under 16 years of age who attended
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hospital in November and December 2016 will be invited to share their experiences through
the questionnaire which is being sent out by all acute NHS trusts providing paediatric care
from the end January 2017 and throughout February - April 2017. Click for more.
Local offer briefing
This briefing sets out the provision the local authority expects to be made available by
schools, early years and post-16 providers. The purpose of the document is to focus attention
on the requirement on local authorities to set out what special educational provision and
special training provision it expects schools and early years and post-16 providers to make
available. Click here to download.
CDC annual conference resources
This year we hosted two national conferences “SEND: New challenges, new opportunities”
focusing on Children with the most complex needs, implementation of the SEND reforms
and ongoing reform in education. We have pulled together all of the resources and
presentations from the day in one handy page for you to download.
DfE SEND Newsletter January 2017
This edition focuses on funding for SEND support 2017-18, headlines from the autumn
2016 Implementation Surveys and the latest recent and upcoming reports.
‘One Stop Guide’ to commissioning speech and language therapy services for your
school
The Communication Trust have developed a ‘One Stop Guide’ to take you through key steps
to consider when you are planning to commission speech and language support. These
include top tips on decision making around the service that you commission, practical
steps to integrate your service into your school and how to assess if it’s actually working.
To access the ‘one stop guide’, an accompanying short video and some school case studies,
click here.
Suite of resources on pathways for children with challenging behaviour
The Challenging Behaviour Foundation has been working with the National Development
Team for inclusion (NDTi) to develop three new resources setting out a vision of future
local pathways for children with learning disabilities and/or autism whose behaviours may
challenge. Click to access the resources.
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Training and Events
Whole School SEND Summit
The London Leadership Strategy is hosting this event on 23 February in London to bring
together new and established voices to discuss SEND in an innovative and discursive format.
The aim is to utilise the experience and expertise of everyone in the room to develop
thinking and practice in SEND, and create a lasting, collaborative community dedicated to
improving outcomes for children with SEND.
‘Meet the funder’ webinars: New VCSE Health and Wellbeing Alliance
The Department of Health, Public Health England and NHS England recently launched the
Voluntary Community and Social Enterprise (VCSE) Health and Wellbeing Alliance. The
Alliance will facilitate integrated working between the voluntary and statutory sectors and
will continue to build on productive and transparent relationships with the VCSE sector,
bringing the sector’s voice and expertise into national policy making. To join one of the
webinars please email: [email protected]
SEND: strengthening regional partnerships - North Region
NHS England invites you to attend this session with colleagues from across the North region.
Much has been done across the region to establish strategic multiagency partnerships
on SEND; this day is an opportunity to strengthen these, to share learning and increase
regional SEND networking with colleagues from across health, local authorities and parent
groups.
Free CPD course for teachers and educational practitioners
Focus on SEND is a free course aiming to help teachers and educational practitioners
working across the 0-25 years age range to develop high quality practice in order to better
meet the needs of their learners with SEND. The offer of training for Primary and Secondary
school teachers is now freely available to access. To reflect the intentions of the SEND Code
of Practice, and following testing and expert review by colleagues working in these settings,
they will be launching training for Early Years and
the Post 16 sectors later in May.
Bespoke training from CDC
We deliver training to help practitioners and services
for children, young people and families on a range
of current issues. Our training combines sensible
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guidance on all the latest legislation with practical advice and solutions for delivering good
outcomes for children and young people.
All of our training can be delivered on request to your organisation either on site or at
our offices in London. To find out more about the following training please contact 020
7843 1900 or email [email protected] for a quote or click on the link to see the full training
programme: http://www.councilfordisabledchildren.org.uk/what-we-do/training
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About the Digest
The CDC Digest is a quarterly round-up of all the essential policy, practice and
other news involving disabled children and young people, and their families.
You can download the latest issues from the CDC website.
If you would like to be added to the list to receive this digest, email [email protected] with
‘Subscribe to CDC Digest’ in the subject line.
About CDC
The Council for Disabled Children (CDC) is the umbrella body for the disabled children’s
sector in England, with links to other UK nations. We are the only national body that
brings together the diverse range of organisations that work with and for disabled
children to support the development and implementation of policy and practice. Our
work impacts on over 800,000 disabled children and their families.
CDC hosts Making Ourselves Heard, the IASS Network, the Special Educational
Consortium, the Transition Information Network, Preparing for Adulthood, and the
Independent Support programme.
The Council for the Disabled Children is part of the National Children’s Bureau
Find out more
www.councilfordisabledchildren.org.uk
www.facebook.com/councilfordisabledchildren
@CDC_tweets
www.linkedin.com/company/council-for-disabled-children
The views in this e-bulletin do not necessarily reflect the views of the Council for Disabled Children
....or contact us on [email protected] or 020 7843 1900