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Proposed Education Law Reform in Wales gathers pace with new Bill

View profile for Nathan Davies
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Many parents in Wales may now be aware that the Law is changing in respect of assisting children and young people with special educational needs, somewhat prompted by the recent changes made in England following the implementation of the Children and Families Act 2014.

There are some interesting proposals made by the Welsh Government departing from the new law in England, which can be found here. A new ALN Code of Practice has also been issued but this is only a draft and at the moment is for information purposes only. Our specialist education law solicitors can give proper advice upon request but in this blog we highlight the following changes as being key:
 

1.Statements of SEN will now be replaced by Individual Development Plans

Individual Development Plans (IDPs) will now be the relevant legal document issued in Wales in order to support children and young people with learning difficulties. These will be similar to the Education Health and Care Plans (EHCPs) issued in England and they will provide the necessary support until the young person reaches the age of 25 (as opposed to the current system whereby Statements of SEN cease at 19), although it is not applicable to University or if the young person is in full-time employment. This will help parents as they will no longer be required to navigate their way through the disjointed Learning Difficulties Assessment process which Careers Wales oversee.

There will be two forms of IDPs issued:

  • IDPs prepared and maintained by schools and further education institutions; and
  • IDPs prepared and maintained by the Local Authority.

The Welsh proposals however do not make reference to the need for a child’s health and social care needs to be taken into account when devising the plan (unlike the principles of the English system). The proposals do mention the need for the Local Health Boards and NHS Trusts to secure appropriate provision for the child which may involve Speech and Language Therapy and Occupational Therapy.
 

2.The old Statutory Assessment process will now be overhauled

Under the old system, it was the responsibility of the Local Authority to conduct the assessment of the child’s needs and thereafter determine how to meet those needs along with identifying a suitable placement. However, under the new proposals this duty will pass to the Governing Body of maintained schools which would mean it will essentially take the form of a teacher-led assessment in determining whether a child requires the benefit of an IDP. This is a clear departure from the previous multi-disciplinary approach involving a number of specialist agencies and professionals, such as an educational psychologist. The schools are able to pass the matter to the Local Authority in certain circumstances; however this will only be applicable in the most complex cases.

Not only is this worrying for parents as the assessment process has now become diluted and not as comprehensive as the previous regime, it also means that teachers will now be responsible for making key decisions in relation to a child’s education. This would increase further pressure on teachers, especially when it may leave them open to legal action if they were to make a decision that has a detrimental impact upon a child’s education.
 

3.The burden of meeting a child’s additional learning needs will shift to the schools/further education institutions

Provision identified as being required to meet the additional learning needs of a child/young person which are detailed within an IDP must now be secured by the Governing Body in certain circumstances. This could potentially lead to cases where the school fail to deliver the required provision outlined in the IDP which would allow the parent to initiate judicial review proceedings; not an ideal situation for either party. It would remain the responsibility however of the Local Health Board to deliver provision that was agreed upon the creation of the IDP, such as therapeutic intervention. IDPs issued by Local Authorities however will still be their responsibility.

4.The commonly used phrase ‘special educational needs’ is being replaced with ‘additional learning needs.’

In many respects the determination to introduce this phrase and overhaul the previous well known system illustrates the political leaning of the entire reforms. The previous White paper claimed that ‘SEN’ has become a negative phrase but despite being challenged regarding this the Welsh Assembly have not provided any evidence to show that this is the case. SENCOs will now be replaced by ALNCO’s but in reality this change adds little to assist disabled children in Wales.

5.The right of appeal to the ALN Tribunal will be against:

  • a decision not to put an IDP in place;
  • a refusal of a request to review an IDP;
  • the content of an IDP,  including the description of the child or young person’s needs or the educational provision required to meet those needs;
  • a failure to make available the provision identified through the IDP;
  • the school named or the type of school named in the IDP
  • a refusal to review and IDP or to make changes following a review
  • a failure of the LA to take over responsibility for an IDP following a request to do so
  • a decision to cease to continue an IDP
  • all the above would be open to children and young people 0-25 and their families

Next steps

The Bill will be formally introduced into the Assembly Welsh Legislative Programme in the next Assembly following the elections in May 2016. The draft Bill apparently has widespread cross-party support. The earliest any proposals could take effect would be for the academic year 2016/17. Until the law formally changes statement of specialist educational needs remain in place and must be issued as appropriate. HCB Solicitors have already heard from a number of parents that their LEAs are informing them that as statements are being abolished they can’t do anything to assist at the moment so parents have to wait. That is incorrect and misleading information.

Conclusion

The Welsh Assembly Government seemingly has ignored the serious concerns expressed by schools and practitioners about the practical ability of these suggested reforms to actually function on a day to day basis. Whilst some reform is welcome these changes are dramatic and it will be interesting to see if any further changes to the Bill take place before it becomes proper law. If you have concerns about the reforms our specialist ALN Solicitors would be happy to talk through any issues so please feel free to give us a call on 02920 291704.

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