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Legislation and progress

As recently as the 1970s, children/young people with learning disabilities were not automatically entitled to education and were often considered incapable of being educated – sometimes described as ‘ineducable’. That is certainly not the case now.

Since 1971, successive legal safeguards have sought to ensure that all children/young people have an increasingly equitable chance of benefiting from education. In that year, for the first time, the Education (Handicapped Children) Act 1970 granted all children of compulsory school age the right to an education. A decade later, the 1981 Education Act introduced the term 'special educational need', together with the legal right for every child to be educated in a mainstream school subject to stated conditions. This entitlement continues to this day under the Children and Families Act 2014.

Legislation has not only provided the critical checks and balances needed to progress equal rights. It has also helped to drive the overall direction of policy and set the level below which we, as a society, agree that provision will not fall (Centre for Studies on Inclusive Education, 2014).

Legislation about children with disabilities

Many, but not all, children/young people with disabilities will be assessed as having special educational needs. Since 1 September 2014 (April 2015 for those in youth custody), the educational provision for children/young people with disabilities has fallen within the new special educational needs/disability framework which includes:

  • Children and Families Act 2014 (Part 3);
  • 0-25 SEND Code of Practice (2015);
  • Special Educational Needs and Disability Regulations 2014.

The 2014 special educational needs/disability framework replaces the previous framework associated with the Education Act 1996, the Learning and Skills Act 2000, the 2001 Special Educational Needs Code of Practice and associated regulations.

September 2014 to March 2018 is the transition period between the old and new frameworks.
It is covered by the statutory guidance, Transition to the

New 0 to 25 Special Educational Needs and Disability System (Department for Education, 2014). By April 2018,
all special educational provision will be made under the

2014 framework.

If children/young people have Statements of Special Educational Needs from the old framework, their special educational needs provision will be regulated by earlier statutes until their statutory ‘transfer review’.

Children and Families Act 2014

The most significant changes to the special educational needs framework introduced by the Children and Families Act 2014 included:

  • Extending the age range for Education, Health and Care (EHC) Plan support for children/young people in education and training to 0-25 years;
  • Including guidance relating to disabled children/young people as well as those with special educational needs;
  • Replacing Statements of Special Educational Needs and Learning Difficulty Assessments with a single, interagency EHC Plan;
  • Replacing school action and school action plus with a single ‘SEN support’ category;
  • A stronger focus on aspirations and outcomes;

Continued on next slide...

Children and Families Act 2014 (cont.)
  • A requirement for integrated working among statutory agencies (Education, Health and Social Care) (eg joint commissioning of services; identification of children/young people with special educational needs/disabilities; EHC Needs Assessments/Plans; and the mediation/complaints/redress process);
  • A new duty on health commissioners to deliver the agreed health elements of EHC Plans;
  • Greater involvement of parents and their children/young people in decision-making;
  • Giving young people with special educational needs/disabilities or parents/guardians the right to a personal budget;
  • An open-access ‘Local offer’ of services that support education, health and social care;
  • Guidance on relevant Equality Act 2010 duties and Mental Capacity Act 2005 provisions.

(Council for Disabled Children, 2014; Department for Education, 2014; Tri.x, 2014; Whitehouse Consultancy, 2014)

Care Act 2014 (1)

From its implementation in April 2015, the Care Act 2014 improved the continuity in education/training/care for children with special educational needs/disabilities up to the age of 25 years. It ensures that:

  • Provision under Education, Health and Care (EHC) Plans cannot be stopped until a Care Needs Assessment has been carried out and decisions about future support taken.
  • A young person’s EHC Plan will continue to be maintained by the local authority while they are in education or training.
  • A needs assessment can be carried out prior to the young person’s 18th birthday to ascertain future support required under the Care Act.
  • A parent carer can request an assessment prior to the young person’s 18th birthday so that any provision to meet the carer’s future needs in respect of their son/daughter’s transition to adult services can be identified and provided.
Care Act 2014 (2)

A local authority must undertake a ‘child’s needs assessment’ (or give reasons for refusing) if it considers that:

  • 'A disabled child is likely to have needs for care and support after becoming 18'
  • 'The assessment would be of significant benefit to the child.'
(Clements, 2014)

Similar criteria apply to carer’s rights to have a local authority ‘child’s carer’s assessment’ in relation to their support for the young person.

If a ‘child’s needs assessment’ does not continue after their 18th birthday, the young person must be reassessed and earlier provision continued until superseded by the assessment outcomes.

If a person is not eligible for support, the local authority must offer written advice and information about how to meet, reduce or prevent their difficulties.

If the local authority confirms the need for provision, they will draw up a Care and Support Plan’.

(Care Act 2014, sections 59-62)
(Clements, 2014)

Care Act 2014 (3)

Under the Care Act 2014, local authorities have general duties to promote the well-being of individuals and the quality of provision. They must also consider:

  • The individual’s views, wishes, feelings and beliefs;
  • Integrated assessment/provision;
  • Actions to prevent/delay the development of care and support needs;
  • Person-centred decision-making;
  • Facilitating the individual’s own voice, meaningful participation and rights/freedoms;
  • Balancing the needs of the individual and their carers.
(Clements, 2014)
Other statutes influencing special education services

A number of other statutes influence services for children/young people with special educational needs/disabilities, most notably:

  • Chronically Sick and Disabled Persons Act 1970 (for those over 18 years, this has been repealed by the Care Act 2014);
  • Children Act 1989;
  • Mental Capacity Act 2005;
  • Equality Act 2010;
  • Care Act 2014.

Statutory guidance relating to special educational needs can also be found on the Department for Education website on a range of topics including assessment (P scales), supporting children with medical conditions, inclusion and safeguarding. Statutory guidance on school policies can be found here.

These set out the broad legal framework and establish the rights of children/young people with learning difficulties and disabilities.

Non-statutory government guidance informs schools of their duties around other legislation;
for example:

  • Equality Act 2010: Advice for schools (2014);
  • Mental Health and Behaviour in Schools (2014).
SEN framework improvements
Neo classical columns of a legal establishment

The Green Paper, Support and Aspiration: A New Approach to Special Educational Needs and Disability (2011), identified the following weaknesses in the existing special educational needs/disability framework:

  • Children/young people do not have a voice.
  • Teachers are given insufficient training and support.
  • Too many assessments are involved.
  • Appropriate support can be too difficult to access.
  • The appeals process is costly.

Explore the 0-25 SEND Code of Practice (2015) to find out how it has addressed these issues?

Other publications