Speaker Notes to Support Power Point Presentation for LDW Conference 11 December 2015
Where are we now? Some Key Developments in Education Law in Wales for Children and Young People with Disabilities / Special Educational Needs
Introduction Power Point Slides 1 & 2 1. Good afternoon. My name is Jacqueline Blackmore. I have been asked to speak on the topic of, “Where are we now – Some Key Developments in Education Law in Wales for Children and Young People with Disabilities/ Special Educational Needs.” 2. A copy of my power presentation relating to this talk can be found at pages 39-45 of the delegate pack. 3. Before I begin my talk I would like to thank Luke Clements and Learning Disability Wales for asking me to speak at this Conference. I feel privileged to be on the podium alongside such experienced and eminent public law practitioners and I also feel privileged to be addressing this highly knowledgeable and experienced group of delegates. 4. In addition to sharing my views and experiences with you I see this address as an opportunity for me to learn from your views and experiences, so please feel free to ask questions and share your views and experiences during this presentation. 5. By way of introduction I am a solicitor with 20 years experience of working in the education law field. I have worked in private practice, as well as for a local authority and I presently work as a Chair for the Special Educational Needs Tribunal for Wales. A copy of my pen picture is set 1
out in the delegate pack if you want to find out anything more about me. 6. In mentioning the SENTW I have to make it clear that although I am a Chair of the Special Educational Needs Tribunal for Wales I am not here today representing the Tribunal. The thoughts and views I express in this talk are gleaned from my years of experience across the education law field and they are entirely my own and they should not in anyway be taken as representing the position of the Tribunal.
Aims - What the talk will cover Power Point Slide 3 7. I am going to start my address by briefly trying to answer the question posed by the Conference title, “Where are we now?� in respect of developments in education law as they relate to disability and to special educational needs. 8. In so doing, I acknowledge that disability and special educational needs are not synonymous. There are disabled children and young people who would not be classified as having special educational needs and there are also children and young people with special educational needs who would not be classified as disabled. Equally, however, there is a significant cross over of the two groups and many of the disabled children and young people that we know will also have special educational needs. For this reason, in my view, it is pertinent to consider both groups when looking at the question. 9. So, having considered the issue of where we are, I am then going to go on to consider what legal developments, I think, are contributing to this position. 10. From there, I am going to look at each of these developments in a little more detail. Here I have to apologise in advance because, due to time constraints, it will not be possible to go into the developments in great depth, but I hope to refresh your memory concerning each
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of the legal developments and touch on some issues that may be of interest to you relating to them. 11.
Then I will try to draw some brief conclusions.
12. Finally, I hope we will be able to share and consider together, during discussion, what your views are around these developments and where we think these developments are likely to take us.
Where are we now? Power Point Slide 4 13. I think the position in education law terms in Wales, as it relates to children and young people with disabilities and/or with special educational needs, can currently be summed up in 3 words, Change, Challenge and Uncertainty. I briefly thought about using the term “chaos” instead of “uncertainty” because it begins with “c” and therefore sounds better, but I think that this is overstating the mark! 14. Put very briefly, I believe we are part way through a period of significant legal change in the field of education law as it relates to disability and special educational needs. 15. In my view, this change is presenting and will continue to present us with some difficult challenges and it is creating a large amount of uncertainty at the present time for all those involved in or trying to use the systems that provide support for children and young people with disabilities and/or SEN. This uncertainty may be good for lawyers but it is not for anyone else!
Change - Challenge - Uncertainty – Legal Developments – What are they Power Point Slide 5 16. The change we are presently experiencing, in my view, flows principally from the following 3 sources: a. The introduction of the Equality Act 2010 3
b. The full introduction of the right for children and young people to appeal/bring a claim to the Special Educational Needs Tribunal for Wales in respect of their special educational needs and/or disabilities under the Education (Wales) Measure 2009 and c. The proposals to reform the SEN and Learning Difficulties and Disabilities systems, which are set out in the Draft Additional Learning Needs and Education Tribunal (Wales) Bill 2015. 17. These are 3 significant pieces of legislation/proposed legislation. I see them very much as a suite of legislative provisions that should come together (eventually) to have a major impact on educational provision and educational outcomes for children and young people with disabilities and/or special educational needs. 18. Also it should be pointed out that whilst the Equality Act 2010 is a Welsh and English statute, the Education (Wales) Measure 2009 and the Draft ALN Bill 2015 apply to Wales alone. In the field of education law, as in a number other fields of law and social policy, therefore, under devolution Wales is increasingly taking its own path!
Change - Challenge - Uncertainty – Legal Developments – Why are they causing this to happen Power Point Slide 6 19. The challenge presented by these 3 legal developments flows from 2 factors which relate to the aims behind these developments and the context in which they are being introduced. 20. I feel the aims of the 3 significant legal changes (2 actual and one potential) are to create a statutory framework to support greater and improved inclusion of children and young people with disabilities/SEN within schools and colleges; to make the system of support for additional needs more inclusive, more responsive and
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more effective in delivery in Wales and to provide a more effective system of redress for parents of children with disabilities and/or special educational needs and finally, in line with the United Nations Convention on the Rights of the Child, to provide for the views of children and young people to be a central part of decision making that impacts on them and provide them with rights of redress if they remain unhappy with those decisions. 21. Based on this in my view the overall aim of these pieces of legislation/proposed legislation is to deliver a framework to support greater inclusion and deliver improved outcomes for children and young people with disabilities and/or special educational needs in education settings. 22. So, extremely laudable aims but nonetheless quite a tall order and quite a bit of a challenge! 23. I also feel that it needs to be borne in mind that this is all happening at a time of austerity and extreme financial pressure on public services. This causes even greater challenge!! 24. And, therefore, because these aims and the circumstances in which they are being introduced are both challenging and because the legislation is relatively new and there is still a lot more potentially to come, the situation for all those involved in the disability and SEN education fields in Wales is, I feel, quite uncertain at the present time. 25. I also feel that this uncertainty is likely to persist for some time because of the way that the 3 pieces of legislation/ potential legislation link in together.
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Over view of the 3 Key Legal Developments The Equality Act 2010 Power Point Slide 7 Background and General Points 26. Delegates will be familiar with this legislation already in the context of their own field of public administration. It is an important development of recent years that is helping to frame how public authorities, including schools and local authority education departments, address the needs of disabled people in general and children and young people in particular, and, as I will explain later, I feel this legislation has contributed to the sense of change, challenge and uncertainty that applies in the field of disability and SEN education law at present. 27. This Act had a long gestation period. It followed on from a 2005 Discrimination Law Review that was established to look at inconsistencies in the general discrimination framework. There then followed a 2007 Consultation Paper, “A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain,” and 2 Command Papers of 2008 called “Framework for a Fairer Future – The Equality Bill” and “The Equality Bill – Government Response to the Consultation.” A White Paper was then issued in 2009 called, “New Opportunities.” 28. The Act received Royal Assent in April 2010 and was finally introduced, in large part, but not entirely, on 1 October 2010 across Wales and England. So we are now 5 years post introduction. 29. The idea behind the Act was to consolidate, harmonise and strengthen in some respects the legislation on anti discrimination in relation to all equality strands, including disability. 30. Therefore the Act repealed the previous principal anti discrimination statutes, including the Disability Discrimination Act 1995, and brought the law relating to 6
each of the equality strands protected by these statutes together as one new statute, with a view to making “equality law” simpler and easier to understand. It also sought to streamline and equalise the protections offered to the various equality strands, with a view to creating a framework that delivered better outcomes.
Summary of what the Act does 31. In brief, the Act affords disabled people with protection against four different forms of discrimination and protects against 2 other “prohibited acts.” In very broad terms these are as follows: Direct discrimination – under s. 13 of the Act – which in summary is less favourable treatment because of disability. A possible e.g. in an education context might be to say you have “X disability” and therefore you can’t go on this school trip? Indirect discrimination – under s. 19 of the Act – which in summary relates to a provision, criterion or practice that is applied across the board but which puts disabled people at a particular disadvantage and puts the relevant disabled person to this disadvantage and this cannot be justified as a proportionate means of achieving a legitimate aim. A possible e.g. in an education context might be an exclusion policy of “three strikes and you are out,” where it can be shown that this disproportionately affects pupils with ADHD, for example, and a particular pupil with ADHD has been excluded and it cannot be shown that the policy is justified? This is a new provision from the perspective of disability discrimination. Discrimination related to disability – under s. 15 of the Act – in summary this is unfavourable treatment because of something arising in consequence of a person’s disability (an effect of the disability) and that unfavourable treatment cannot be shown to be justified as a proportionate means of achieving a legitimate aim, or it cannot be established that there was a legitimate lack of knowledge of the disability. A 7
possible e.g. in an education context might be to say, as you require a wheelchair as a result of having, for example, mobility difficulties linked to cerebral palsy, you cannot go on this school trip to the local activity centre, in circumstances where this position cannot be justified and the disability is known about? A failure to make reasonable adjustments - s. 20 and s.21 of the Act - in summary the duty to make reasonable adjustments arises where a disabled person is placed at a substantial disadvantage in comparison with a non disabled person in relation to the application of a provision, criterion or practice, or by a failure to provide an auxiliary aid or, except in the context of schools’ obligations under Part 6 of the Act, by the existence of a physical feature: a failure to take reasonable steps to avoid the substantial disadvantage by varying or disapplying the relevant practice, or by providing the auxiliary aid, or by removing or adjusting the physical feature (not applicable to school) would constitute a failure to make reasonable adjustments. A possible e.g. in an education context might be to say, although you have difficulties with your vision and cannot read documents in a size 12 font we will not put in place arrangements to provide copies of documents in a bigger font so you can read them? Harassment – under s. 26 of the Act – in summary this is unwanted conduct related to a person’s disability which has the purpose or the effect of violating a person’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for the person taking into account the circumstances of the case, the perception of the disabled person and whether it is reasonable for the conduct to have the particular effect. A possible e.g. in an education context might be to repeatedly tell a disabled pupil with a learning difficulty that he/she is “stupid” in front of a class? 32. Victimisation – under s. 27 of the Act –in summary this occurs where a person initiates or is involved in proceedings or a complaint (however expressed) about a breach of the Act or is believed to have done so or to be about to do so and is subjected to a detriment because of this. A possible e.g. in an education context might be where a parent complains that a school has breached the 8
Act on the basis of their child’s disability by failing to make reasonable adjustments and the school bans the parent from talking to teachers? 33. In addition to placing duties on education providers not to discriminate against disabled people and to avoid the 2 prohibited acts of harassment and victimisation, the Act also places a more general public law duty upon education providers with a view to eliminating discrimination, harassment and victimization, advancing equality of opportunity and fostering good relations between disabled and non disabled people. 34. In a school context, local authorities and schools also have a duty to produce and implement and review accessibility strategies and plans. 35. Education providers have different specific duties under the Act depending the type of provider they are and the nature of the function they are carrying out. 36. So that schools (by which I mean their governing bodies) have specific duties under Part 6 Chapter 1 of the Act in relation to pupils (including prospective pupils and former pupils in certain circumstances) and in addition they have additional duties to other people who use their services as a public service provider under Part 3 of the Act and schools also have other duties under Part 5 of the Act as an employer. 37. Local Authorities also have specific duties under Part 6 Chapter I of the Act in regard to school pupils where they are considered to be the “Responsible Body� for the school or schools, e.g. as an admission authority and they will also have additional duties to people who use their services as a public service provider under Part 3 of the Act, they will have other duties under Part 5 of the Act as an employer and they are likely to have duties under Part 12 of the Act in relation to provision of transport. 38. FE and HE providers have their own specific duties under Part 6 Chapter 2 of the Act to students (including prospective and former students in certain circumstances) 9
and again they will also have additional duties to other people who use their services under Part 3 of the Act and again they will have other duties under Part 5 of the Act as an employer. 39. Part 9 of the Act sets out how duties are to be enforced and the mechanisms for enforcement vary depending on the type of body involved and the nature of their activity. 40.
So, all as clear and easy to use as mud in my view!
Issues 41. Even though it was supposed to be a consolidating Act and we did have, in the education context, duties to avoid disability discrimination under the Disability Discrimination Act 1995, as amended, I do feel that the Equality Act nonetheless has contributed to the sense of change, challenge and uncertainty that in my view presently pervades education law as it relates to children and young people with disabilities/SEN. 42. In part this is because the Act had a significant lead in time before it was introduced. Indeed, as with the new ALN Bill of 2015 presently, by the time the Equality Act was due to be enacted there was a great deal of uncertainty as to whether the Act would be introduced at all in 2010, and if so what parts of it would be introduced, as its introduction fell over an election period and different political parties had significantly different agendas and priorities. In the end, although the Act was introduced a number of key provisions have not been introduced at all, and in addition a number of the supporting Codes of Practice that had been intended to support the legislation have not been introduced (the School’s Code in relation to Part 6 duties for example). 43. As a result of the above the Act doesn’t entirely do what it was intended to do and there presently exists a hotch potch of statutory and non- statutory guidance and something called “technical guidance” that supports the
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Act, all of which is very useful in its own right, but which taken together can become difficult to apply. 44. Further, even though it was meant to be a consolidating piece of legislation the Act introduced some significant changes in the disability discrimination law field, particularly as it relates to indirect discrimination. Also, in my view, the Act doesn’t appear to have resolved the old chestnut relating to disability and behaviour problems and how far the legislation should go in offering protection to people with such problems. So we are still working through these changes at present and feeling our forward on a number of issues. 45. Moreover, even though the Act was billed as a means of simplifying and streamlining the legislation on equality law I am not convinced it has really achieved this aim in the disability context as it applies in the education field at least. In my view the legislation in this area remains highly complex and it incorporates a number of very technical employment law and EU concepts and as a result overall it remains hard for education providers and for children and young people and their parents to understand and use effectively. 46. So whilst I think the majority of people now know that it is wrong to discriminate against someone on the basis of their disability and whilst I do think schools and FE institutions have taken this on board in general terms and they often feel they are trying their best to guard against being discriminatory, I don’t feel that the public at large and some education practitioners in particular have as yet fully got to grips with and fully understand all of the concepts that underpin the legislation and as a consequence unintended mistakes can quite easily be made. 47. Even when the concepts and technicalities of the legislation are understood I think that applying these practically in an education setting where there are often significant time pressures at play when decisions are bring made can be quite difficult.
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48. So whilst I have seen improvements in the way that most schools and local authorities are approaching things in this area I also see significant mistakes being made, often unintentionally, and I think there is further work as yet to be done in regard to training in this field of law and its practical implementation.
Further Information 49. If you are interested in refreshing your memory even further concerning the Equality Act and/or in considering some of the points that I have made further the following documents may be of use: The Equality Act 2010 – www.legislation.gov.uk The Equality Act Codes, Guidance and Technical Guidance - www.equalityhumanrights.com
The Education (Wales) Measure 2009 - Introduction of a Child/Young Person’s Right to Appeal/Bring a Claim in respect of their SEN and/or disabilities to SENTW Power Point Slide 8 Background and General Points 50. The Children’s Commissioner first mooted the concept of children and young people having a right of redress to SENTW a number of years ago, based on the principles of the United Nations Convention on the Rights of the Child. Welsh Government took up this concept and the Education (Wales) Measure 2009 was created. 51. Rather than introduce the right immediately across Wales, however, it was first trialed via 2 pilot schemes (which in itself represented an innovative approach to the introduction of primary legislation) and these schemes took place in the areas of Carmarthenshire and Wrexham Local Authorities. They commenced in March 2012 and they ran for two years. 12
52. Following an evaluation of the pilot schemes, the new right was rolled out across Wales on 5 January 2015. So it is still very new indeed for the majority of Welsh local authorities, schools and their residents! 53. It is fair to say that this is a pioneering and innovative step that has the potential to be truly ground breaking!! 54. I also think it is fair to say that it is a step that has and will continue to throw up some significant challenges and that we are in the very early stages of the development of this right. 55. I also think that this right may be of particular interest to delegates from the social care field as this new right will be particularly pertinent to children and young people of more vulnerable parents and to children and young people who are looked after.
Summary of what the right provides 56. Firstly, children and young people are entitled to bring an appeal or claim to SENTW in respect of their SEN and/or disabilities, in the same way that their parents are entitled to bring an appeal or claim, but in their own right. This right is separate and additional to the right of parents to bring an appeal or claim. The issues that can be appealed/claimed against are the same as for parents and a child/young person’s right of appeal/claim has parity with the parental right of appeal. 57. Secondly, the right to appeal/claim is not limited on the basis of a child’s age or their competence. Therefore, all children/young people with SEN and/or disabilities hold the same right of appeal or claim as their parents and the starting point will be that they are entitled to exercise this right themselves. 58. In recognition of the fact that age or competence may on occasions be a factor that affects the ability of a child or young person to initiate and participate in proceedings without support there is provision for an appeal or claim to 13
be brought on behalf of a child or young person by a “case friend” and, in addition, the President of the Tribunal or a Tribunal Panel may decide that a child or young person bringing proceedings does not have sufficient understanding to participate in the proceedings without a case friend and on this basis one may then be appointed to act for them. 59. Thirdly, the Measure places a duty on local authorities to provide children and young people with the documents that they are obliged to provide to parents in SEN appeals, e.g. a copy of any decision letter, or Note in Lieu or Statement. There is also an expectation, as set out in the statutory guidance that supports these duties, that decisions and other documents will be communicated in a way that is appropriate for the child or young person. 60. Fourthly, linked to the new right of appeal/claim, so as to make the right as effective as possible, the 2009 Measure places a number of duties on local authorities to provide information and support and access to dispute resolution and independent advocacy services for children and young people and their parents in respect of SEN and disability discrimination issues.
Issues 61. As yet the take up of this new right has been limited. The reasons for this are not clear. However, this is not uncommon following the introduction of a new piece of legislation and over time, as this new right beds down, I would expect that the number of child/young person initiated appeals/claims will grow. 62. Whilst we may agree with the idea of a child/ young person’s right of appeal/claim in principle, there is no doubt that the right throws up a number of different challenges. 63. It is likely that the right will present challenges for some parents who hold a “protectionist” view of the relationship with their children. The right is likely to present challenges for some educationalists too for similar reasons.
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64. Indeed, I have heard anecdotally through some local authority representatives and some parental representatives that parents of young children and of some children and young people with profound and multiple learning difficulties that severely impact on the child or young person’s developmental age are struggling with the concept that these groups of children and young people have a right to appeal/claim. 65. Linked to this issue I have had anecdotal reports that some parents and local authority representatives are struggling at the present time with the idea that very young children and children and young people with severe developmental delay must be provided with copies of documents relating to the SEN appeal process as it is felt that they will be meaningless to them. 66. I would also say that it may not always be an easy and straightforward task to make systems accessible to children and young people and to produce SEN appeal documentation in an appropriate format for a particular child or young person. It is likely to call for additional time and resources and the adoption of some innovative approaches. 67. The Special Educational Needs Tribunal for Wales has worked exceptionally hard to try to ensure that its processes, its literature and its methods of communication are as accessible to children and young people as possible. The Tribunal website now provides access to information and to appeal and claim forms that have been specifically prepared with children and young people in mind and the website also provides access to an online video and DVD showing “Aled’s Tribunal,” which was prepared to show children and young people what the tribunal process is like. The Tribunal also has access to a text messaging service. 68. I have set out some copies of the information and guidance documents prepared by the Tribunal in the delegate room. Please feel free to at take a look at them.
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69. There are also issues around how easy it will be, in practical terms, for some children and young people to exercise their right without support from their parents or carers. 70. Also, when children and young people do exercise their right it is anticipated that there will be challenges and difficulties when the views of parents and children/young people conflict 71. However, it needs to be remembered that some of these issues and challenges are not entirely new. Prior to the introduction of the new right of children and young people to appeal/claim in their own right there was a requirement that the views of children and young people should be sought concerning an appeal or claim unless there was good reason not to do so and the Tribunal was already supportive of allowing children and young people to attend tribunal hearings if they wished to do so. 72. So there is already some experience within the system of engagement with children and young people to draw upon to help support this new right. 73. Some of the issues I have identified will be ameliorated or exacerbated by the quality and availability of the advice, and support provided by local authorities and by the quality and availability of the dispute resolution processes and independent advocacy services that are also to be provided by them. In this regard, at a time when public finances are under extreme pressure, questions do need to be asked about the capacity of local authorities to deliver this provision effectively. 74. In the longer term, I believe that as the concept of a rights based culture for children and young people slowly becomes more embedded across the field of public administration, as I think is likely, it will become the “norm� for children and young people to be actively engaged in decisions that affect them. In so doing, I think that parents and professionals working with them will gradually become more comfortable with the concept that children have rights that they are entitled to enforce and will begin to feel less 16
threatened by this idea and as a result some of the issues and concerns that I have highlighted will hopefully resolve. 75. Given that legislators and policy makers in Wales now have to have regard to the need to promote the rights of children and young people under the United Nations Convention on the Rights of the Child under the Rights of Children and Young People (Wales) Measure 2011, I think that there is a strong possibility that there will be a further roll out of the rights of children and young people to be actively involved in decisions that affect them and in their rights to challenge those decisions into wider areas of education and on into other public services. So I think those involved in other public services may want to pay close attention to the development of the new right, so as to be in a strong position to take on similar rights in the future.
Further Information 76. If you are interested in learning more about these new rights and the responsibilities that have been placed upon local authorities so as to support them the following documents may be of use: The Education (Wales) Measure 2009www.legislation.gov.uk/mwa/2009/5/contents Welsh Government Statutory Guidance for Local Authorities: Children’s rights to appeal and make a claim to the Special Educational Needs Tribunal for Wales January 2015 - Guidance Document No 157/2015 – www.wales.gov.uk/educationandskills The Special Educational Needs Tribunal for Wales Regulations 2012 – www.legislation.gov.uk/wsi/2012/322/contents/made SENTW information booklets concerning the right to appeal/claim – www.sentw.gov.uk
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The Education (Wales) Measure 2009 (Pilot) Regulations 2012 – www.legislation.gov.uk/wsi/2012/321/introduction/made The Evaluation of a Pilot of Young People’s Rights to Appeal and Claim to SENTW: Final Report – www.wales.gov.uk/statistics-and-research/evaluation-pilotyoung-people-rights-appeal-claim-sentribunal/?skip=1&lang
The Additional Learning Needs and Education Tribunal (Wales) Bill July 2015 Power Point Slide 9 Background and General Points 77.
This Bill has been a very long time coming!
78. It follows on from Welsh Government concerns that the current SEN system, which is based on Part IV of the Education Act 1996 as amended and the SEN Code of Practice for Wales, and the post -16 LDD system, which is based on the Learning and Skills Act 2000 as amended, are outdated, inefficient, overly bureaucratic and insufficiently child-centred or user friendly and generally not fit for purpose. 79. These concerns flow from a series of reviews into the SEN and LDD systems that have taken place since 2002 by a number of different organisations, including the Audit Commission (2002), Estyn (2004), and the Welsh Government Education and Lifelong Learning and Skills Committee (ELLS) 2003 – 2007. 80. Welsh Government has been considering reform and consulting with stakeholders in the education field on various options since 2003 onwards and there have been 3 separate formal consultation processes prior to the present Bill being issued. The first took place in 2007 and took the form of a preliminary consultation on possible options for 18
reform as set out in a consultation document called, ”Statements or Something Better?” The second consultation took place in 2012 when Welsh Government issued a set of reform proposals set out in, “Forward in Partnership for Children and Young People with Additional Needs.” The third took place in 2014 when Welsh Government consulted on a White Paper called, “Legislative Proposals for Additional Learning Needs.” 81. Welsh Government has also initiated a number of pilot projects that ran from 2009 – 2013 to road test various aspects of the reform proposals. 82. Based on all of this Welsh Government issued the ALN Reform Bill for consultation in July 2015. The consultation period runs until 18 December 2015. So if you haven’t already responded to the consultation now is the time to do so! 83. Welsh Government has organised 2 consultation events concerning the Bill, the first took place in North Wales on 24 November 2015 and the second takes place in South Wales on 30 November 2015. Welsh Government has also said that it will be holding smaller consultations involving parents and children and young people. 84. The Bill, in my view, introduces some radical and innovative changes but also retains quite a lot from the current SEN and LDD systems. 85. That the Bill retains elements of the current system is not surprising. Having been quite critical of the current systems I think that the various consultation processes have shown Welsh Government that there are some elements of the current systems that are quite effective and I think it has proved difficult for Welsh Government to devise viable working alternatives to these things. 86. So, in the Foreword to the 2014 White Paper consultation, the Minister for Education and Skills, Huw Lewis, recognised that the reform proposals contained some radical changes to the current systems but he acknowledged that the reforms also sought to build on the 19
strengths of the current systems as well. He explained that the Welsh Government had concluded that the best approach to reform was to seek to ensure that what works within the current systems is retained and strengthened and what doesn’t work is adapted or replaced. 87. Notwithstanding this, I think it is fair to say that if the Bill goes ahead it will create a whole series of challenges for those involved in the education field and for those involved in the fields of health care and social care too. 88. Further, the protracted period of review and consultation (whilst being laudable in the sense that Welsh Government appears to be trying to create a consensus as far as possible around the reforms and is being careful not to rush head long into change) has undoubtedly created a significant degree of uncertainty for practitioners and for children and young people and their families around the application of the current systems. 89. The Bill is likely to be of interest to delegates from the health and social care fields in addition to those from the education field, as one of its core principles is to improve the effectiveness of collaborative working between education, health services and social care. 90. The Bill also extends the age range of the young people that it covers to 25. So, it is likely to have implications for adult social care and adult health services too.
Over view of what the Bill does 91. The Bill itself is quite short – running to 70 sections. However, to give context to the Bill it is supported by a first draft ALN Code, an Explanatory Memorandum and Notes, a series of Impact Assessments and a Draft Transition Plan that together run into several hundred pages. I have to say that in my view it is difficult to get a clear sense of the proposed changes without having considered this supporting documentation.
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92. The consultation documents that support the Bill indicate that the Bill has 3 main aims and that it seeks to achieve these through a number of core improvements/changes. 93.
The 3 main aims of the Bill are to create: a. A unified legislative framework to support children and young people aged 0-25 with additional needs b. An integrated, collaborative process of assessment, planning and monitoring which facilitates early, timely, and effective interventions c. A fair and transparent system for providing information and advice and resolving concerns and appeals.
94. To achieve these aims it is proposed to make the following changes; a. Introduce the concept of ALN and ALP in place of the concept of SEN and LDD and SENP and LDDP b. Extend the age range to which the new unified system will apply to cover children and young people aged 025 c. Introduce a single statutory education plan called an Individual Development Plan (IDP) that will replace statutory Statements, non-statutory Individual Education Plans (IEPs) and Learning Assessments to cover all children aged 0-25 considered to have ALN d. Require increased participation of children and young people in the decisions that affect them and improve the involvement of some parents through the adoption of a person centred approach to engagement e. Emphasis the importance of high aspirations for all learners and focus on delivering identified outcomes with a view to supporting children and young people to achieve their potential
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f. Provide a simpler, [fairer] and less adversarial system. So the system will provide the same statutory protections for all children and young people with ALN. g. Provide simpler and more flexible processes for drawing up IDPs and for reviewing and amending them h. Increase collaboration and information sharing between all agencies involved in supporting children and young people, principally this will mean education, social care and health services i. Provide for improved provision of information for users of the new system and earlier disagreement resolution mechanisms to try to ensure that difficulties are resolved quickly and at a local level if possible j. Provide clear and consistent rights of appeal against decisions linked to the provision of an IDP, its contents and its amendment to an independent Education Tribunal that are open to all children and young people with ALN aged between 0-25 and to some parents k. Develop a new mandatory Code of Practice, which has compulsory elements that education services, social services and health services will be required to follow in addition to guidance which they will need to have regard to l. Reform the process of registration for independent special provision.
Issues 95. I think it is difficult to argue in principle with the 3 aims that underpin the Bill and indeed with the key changes that are being proposed. If the Bill delivers on these things then I think that it will, along side other education policy reform proposals that are linked to the curriculum and to work force development, bring significant improvements to the education of children and young people with disabilities and/or SEN.
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96. I think that the Bill actually makes quite a good start. After all this time, for the first time we can begin to see what this new system might look like and begin to see how the respective parts of it will or won’t work together and this is a good thing. 97. However, the devil is always in the detail when it comes to legislation and I think there is still a lot of work that needs to be done around the mechanisms and processes that are being proposed in the Bill if it is to achieve its aims. 98. The introduction of a single statutory plan and a flexible process of assessment, support and review are laudable. However, for the new system to be effective, the Bill, the supporting regulations and the new Code will need to guard against the risk that the new system could become highly fragmented with individual education providers “doing their thing,” resulting in a lack of consistency in IDP processes and in IDPs themselves. Consideration will also need to be given as to how to guard against the risk that greater flexibility in IDP processes could result in a rolling process of “interim” IDPs that do not deliver on effective provision. 99. Further consideration also needs to be given to how the IDP process and the IDP itself will incorporate parental views (and be clear over which parents will have their views taken into account). 100. Issues around the identification of the appropriate education setting for a child or young person also need to be given much more thought and consideration and the Bill needs to be very clear as to how the appropriate education placement for the child or young person will be identified and determined. 101. Further, the IDP process and the IDP itself also needs to be clear about how disputes will be addressed and recorded. 102. In addition, I think that the opportunity we have to eradicate some of the weaknesses in the current systems 23
has not been taken far enough and if we don’t take steps to address these then the new system will suffer from similar weaknesses, which would be highly regrettable. This applies particularly to weaknesses in effective collaboration between education providers, support services, health services and social care and in the attribution of responsibility for provision between services and in enforcement of provision. 103. There are also key “tricky areas” that the Bill does not address at all as yet, such as provision for looked after children, transitions and cross boarder issues. Welsh Government has acknowledged further work needs to be done on these issues. 104. The focus of the Bill at the present time appears to be on school based provision and greater detail and thought needs to be given to the framework needed to support the early years 0-5 age group and the post 16 – 25 FE age group. 105. The Bill also needs to emphasis the importance of parity between provision for children and young people who are taught through the mediums of Welsh and English. 106. I also think that the resource implications of the proposals should not be under estimated. The Impact Assessments that have been prepared in support of the Bill do seek to address this issue but it is clear that some of the information that is needed to form effective judgments is not known and I am not convinced by some of the assumptions made in the assessments. Moreover, some of these resource implications are, in my view, likely to apply beyond the transition period that will apply to the introduction of the Bill. 107. The review and reform process recognises that there are weaknesses in the current system and yet the Bill will not be introduced during the current Assembly and even if it is introduced during the next Assembly (likely since there appears to be cross party support for the reforms) the draft Implementation Plan published by Welsh Government provides a lead in time of up to 5 years from the 24
introduction of the Bill to the Assembly. This is a long time to wait if the current systems are not working properly for some children and young people. 108. Further, the long lead time perpetuates the uncertainty that surrounds the current systems of SEN and LDD support and in my view and in my experience that has undermined and will continue to undermine their effectiveness even further. 109. I have heard anecdotal evidence that some local authorities have been acting as though the current systems of SEN and LDD support do not apply any longer. Clearly this is incorrect – until the ALN Bill becomes law and is brought into force the current SEN and LDD systems continue to apply. The Minister for Education and Skills recently wrote to all local authorities to remind them that not withstanding the development of the ALN reforms the current SEN and LDD systems continue to apply and need to be properly implemented. This is something that Welsh Government needs to monitor. 110. The long lead time and the uncertainty this has generated can therefore impact significantly on the quality of the service and support that children and young people with disabilities and/or SEN are currently receiving and there will be children and young people currently within the education system who are having difficulties securing the support they need who may never benefit from the proposed changes.
Further Information 111. If you are interested in learning more about the reform proposals the following documents may be of use: Welsh Government Consultation on the Draft Additional Learning Needs and Educational Tribunal (Wales) July 2015 including a copy of the Draft Bill and supporting Consultation documents and Draft ALN Code – www.gov.wales/consultations/education/draft-aln Education Act 1996 Part IV – www.legislation.gov.uk 25
Learning and Skills Act 2000 – www.legislation.gov.uk The Special Educational Needs Code of Practice for Wales 2002 – www.learning.gov.wales The White Paper “Legislative Proposals for Additional Learning Needs” 2014http://wales.gov.uk/consultations/education/proposala-foradditonal-learning-needs-whitepaper/ Forward in Partnership for Children and Young People with additional Needs 2012 – http://gov.wales/consultations/senframeworkconsultation/ Reform of the registration and approval of independent schools in respect of special educational needs http://gov.wales/consultations/education/senregistration/
Conclusions Power Point Slides 10 -12 Change Challenge and Uncertainty 112. As indicated at the beginning of this talk I feel that we are currently in the throes of a period of significant change, challenge and uncertainty within the field of education law as it relates to disabled children and young people and to children and young people with SEN. 113. As the change and challenge brought about by the introduction of the Equality Act 2010 begins to abate to some degree we have the introduction of the innovative right of children and young people to appeal/bring a claim to Tribunal to implement, coupled with the ongoing development of the ALN reforms and the uncertainty generated by these proposals to work through and then there will be a further lengthy period whilst the ALN reform proposals are implemented (assuming they are). As a result it looks like the present state of change, challenge 26
and uncertainty is likely to continue for some considerable time.
Does this matter 114. Isn’t change, challenge and uncertainty a natural state of being in a legal context and does this matter if we achieve the ultimate aims of these three legislative changes? 115. To a degree the law is always evolving and so there is, at any given time, an element of change, challenge and uncertainty within the legal system and this applies to education law as much as it applies to any other aspect of the law. In my view what makes the current situation different and of greater concern is the degree of the change, challenge and uncertainty that we are currently experiencing in the disability/SEN related education law field and its protracted length (from 2002 – 2021 and beyond possibly!). 116. In my view this matters because the current state of flux and uncertainty has tended to undermine the effectiveness of the existing systems that support children and young people with a disability/SEN and it looks like this may continue to be the case for some considerable time to come. So there are some children and young people in the education system today who may not benefit from the improvements that the changes are designed to deliver and whose educational experience may in some ways actually be worsened during this period of transition. 117. Welsh Government has identified the current SEN and LDD systems as having significant weaknesses. However, given the likely length of time that the proposed reforms of these systems will take to implement (from 2002- 2021 at earliest), there will be at least a generation of children who will have passed through the current SEN and LDD systems and encountered these identified and known weaknesses.
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Room for some optimism 118. Not withstanding what I have said about the current situation in education law as it relates to SEN and disability I do feel that there is room for some optimism concerning the 3 developments I have outlined. 119. These developments have served to raise the profile of disability/SEN rights and the rights of children and young people to be actively engaged in decision making that affects them. They have also shone a light on current SEN and LDD systems and their weakness so that people are more aware of these things at the very least. 120. Elements of the changes, particularly the right of appeal/claim and parts of the proposed ALN reforms are unique to Wales and are innovative and potentially ground breaking. This is something of which Wales can and should be extremely proud! 121. In the longer term, with the 2 additional important elements of time and resources, I am of the view that the changes have the potential to greatly improve the educational experience of children and young people with disabilities /SEN in Wales. 122. I see the 3 pieces of legislation as interlinked and as contributing equally to delivering this overall improvement so there is a need to get these “3 ducks in a row” as soon as we possibly can. 123. Once the “3 ducks are in a row” and provided they can be linked to the other “little ducks” relating to the Social Care Well Being Measure and to Health Care Measures as well, then I believe that Wales will have a disability/SEN educational system that is truly fit for purpose. 124. Diolch yn fawr – Thank you very much for listening. I hope you have found this talk useful. 125.
Your views?
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Prepared by: Dated:
Jacqueline Blackmore 27 November 2015
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