The biggest shake-up in special needs provision for a generation

As the Children and Families Bill winds its way through parliament its time to take stock and think about what it might mean for children and young people with Special Educational Needs and those that work with them. The changes are likely to be as important as those that follow the Warnock report and introduced the Statement of Special Education need thirty years ago.  I have been talking with Mark Hope Policy Officer from the Royal College of Speech and Language Therapists who has been fighting to make sure that the necessary amendments are being put in place.

First the good news..

As usual there is good news and bad news. Its  good news for children who will get an education, health and care (EHC) plans (which will replace statements of special educational needs in the new system) and who require speech and language therapy. The bad news is for those who will not have EHC plans but for whom schools need to be able to obtain speech and language therapy and other external support services.

Speech and language therapy as special educational provision

After much lobbying a government amendment, heavily influenced by the  legal advice of RCSLT and other organisation has been agreed by the House of Lords has been included in the bill to maintain the current approach to classifying speech and language therapy as special educational provision. The main concern here was that such provision could be reclassified as health provision. This would mean that the health service could simply refuse to fund it on grounds of cost and, worse, parents would not have the right to go to tribunal to contest what their child was being offered. The test for whether speech and language therapy is to be treated as special educational provision rather than health care provision will be simply whether it “educates or trains” the child or young person. Crucially, RCSLT obtained a statement from the government spokesperson which could potentially be referred to in court to help ensure that the new wording is construed to mean a continuation of the current approach: “In our view, a local authority and, where relevant, a tribunal, in considering whether healthcare provision or social care provision was to be treated as special educational provision, would ask themselves whether it was educational, taking the approach set out in the current SEN code of practice in respect of speech and language therapy.”

But no EHC..?

Now for the bad news. RCSLT did not manage to strengthen the new duty of local authorities and their health partners to make joint commissioning arrangements. This is particularly bad news for the children and young people with SEN who will not have EHC plans. This includes many children who currently would have a statement of educational need but more worryingly includes all those on school action and school action plus categories will disappear.  There is a danger that schools could increasingly be left on their own to secure the speech and language therapy and other external support services that are needed by many of these children and young people.

And a bit more bad news ..joint commissioning

For years educational and health services have wrestled over who should fund provision for children with SLCN leading to what sometimes led to “border disputes” to some frankly ludicrous arrangements. In the new act the duty requires local authorities and their health partners to make arrangements for agreeing what provision is “reasonably required” but, crucially, does not require them to make arrangements for actually securing it (though there is a duty to make arrangements for securing the provision in EHC plans). The proposed RCSLT amendments strengthening the joint commissioning duty were not ultimately successful but were debated in the Lords and were supported by the opposition front bench. If you are interested have a look at RCSLT legal advice on the Children and Families Bill: . They were also supported by a very wide range of other organisations including the National Association of Headteachers, the Royal College of Paediatrics and Child Health, the British Association for Community Child Health, Nasen and the Royal College of Nursing.

So where does this leave us?

The need for local authorities and their health partners to be required to make arrangements for securing provision for children and young people without EHC plans will not go away. Parents will not stand by if they think that they are not being dealt with fairly and head teachers will have to act according but it would be helpful to have clearer guidance to avoid the nightmares that many parents have had to go through to date fighting for the needs of their child. A freedom of information request in a few months’ time could well reveal a postcode lottery in terms of joint commissioning arrangements at local level. RCSLT remains ideally placed to lead on this issue, given that many of their members are health service employees delivering educational provision, and the support college and other organisations have obtained from parliamentarians and from other organisations provides an excellent basis for continued lobbying in the run-up to the general election.

James Law

Leave a Reply