Does your school’s website break the law? – Special Needs Jungle

Does your school’s website break the law? – Special Needs Jungle

An interesting, if limited, study has been published by the government. entitled “Mental health and wellbeing provision in schools, Review of published policies and information”. Researcher, Rebecca Brown looked at the websites of 100 schools, both primary and secondary, from across different areas in the country to see how their published policies stacked up against requirements.

I say limited because 100 schools out of the many thousands that exist is by its very nature, limited and, as Rebecca points out, she was not asked to make contact with the schools themselves, so actual practice may differ from what is published on their websites.

Therefore the policies on their websites may only be a reflection of how web savvy they are – but I think it’s still a very interesting exercise. The study was commissioned by the Department for Education to see just what a selection of schools do have on their websites relating to their statutory duties, in order to help find out what support schools may need to do meet them. In particular, it looked at how well their information showed a ‘Whole School Approach’, reflecting an inclusive school environment. 

Read more..Source: Does your school’s website break the law? – Special Needs Jungle

SNJ: Updated EHCP Flow charts and a brand new one for the Annual Review!

SNJ: Updated EHCP Flow charts and a brand new one for the Annual Review!

Resources: The SNJ/DfE SEND system Flow Charts

Special Needs Jungle have given permission to share this from their website post: https://specialneedsjungle.com/flow-chart/ which is extremely useful:

The EHCP process flow charts

The EHCP process flow charts that we collaborated with the Department for Education on in 2014 had become out of date since the ending of the Independent Support service. So, I’ve finally managed to tweak them so that they reflect the new state of play AND, we’re also releasing a BRAND NEW flow chart to help you through the EHCP Annual Review.

As you would expect from us, the flow charts are easy to follow and understand so they are also suitable for sharing with young people, with support. They are meant to be a ‘headline’ overview, not a deep dive into the legalities of SEND so please don’t email me telling me I’ve missed this or that – it’s meant to be simple. If there is an error, however, please email me (rather than tag me on social media that I will miss). If you want to get in touch generally, this is always the best way (but don’t ask for support services, that’s not what we do).

What’s changed?

The main flow charts are essentially the same but better reflect our familiar infographic style and, thanks to help with wording from the national IASS Network, I’ve updated the text to show how the government has changed support for families. Read more about that here if you’re not familiar with the changes. As such, the DfE logo remains as the information is unchanged from the original approved co-production, but now more accurate, in line with the support contracts that they issued to the Council for Disabled Children-led consortium.

Click here to access the charts

All-new Annual Review flow charts

Secondly, so many thanks to our Editorial Assistant and team member, Marguerite Haye, we now have a brand new flow chart to help you find your way through the Annual Review. Actually, Marguerite completed the text for these waaay back before she started her current role as head teacher of a small special school and it’s taken me an embarrassing amount of time to get them made up into flow-chart style.

Anyhow, they’re ready now and I hope you find them useful.

Where can you get them?

I’ll be having them professionally printed in larger quantities soon and you will be able to order them via the website in hard copy to be sent out by post. As you would expect for a voluntary enterprise, there will be a small charge for these to cover costs and time.

However, from now, you can download them entirely for free yourself, you may print them and share them online, under the following Creative Commons Licence:

This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.

This means they can be shared for NON-COMMERCIAL purposes and many not be remixed or altered in any way. Credit is also required, so logos MUST remain intact.

If you would like to talk to us about working together to make similar flow charts commercially (without the DfE logo) featuring your own organisational branding, please get in touch

The flow charts come both with a blue background for sharing and downloading, and with a white background if you want to print them at home to save your ink.

Click here to access the charts

Please do share them with parents, schools, GPs, health visitors, CAMHS services and anyone else who needs to have a quick overview of the SEND EHCP system. 

Birmingham City Council v KF [2018] UKUT 261 (AAC) – Transport

Birmingham City Council v KF [2018] UKUT 261 (AAC) – Transport

Many children and young persons need transport to and from school, but can this be described as special educational provision and therefore be included in section F of an Education Health and Care plan (“EHCp”) in order to meet a clearly identified and related need in section B?

Yes, according to Upper Tribunal Judge Levenson in Birmingham City Council v KF

A young person named Karen, who had a number of impairments, had difficulty getting to college such that her attendance had been patchy. The LA issued an EHCp and there was considerable disagreement over content. An appeal was presented to the First-tier Tribunal but by the time the appeal was heard, the only outstanding matter was the issue of Karen’s assistance with transport.

The First-tier Tribunal recognised Karen’s transport related needs and ordered that the following be included in section F of Karen’s EHCp:

“Transport to be provided for [Karen] to secure her attendance at college until the end of the Autumn term to allow an assessment of her transport needs to be concluded. Thereafter, appropriate support to assist [Karen] to become an independent traveller and reduce her anxiety so that she can access public transport without assistance”

The LA appealed asserting that transport could not be special educational provision. The Upper Tribunal did not agree and pointed to s21 The Children and Families Act 2014 which states “Special educational provision… for a child aged two or more or a young person, means educational or training provision..”. Hence, if any provision, including transport, educates or trains a child or young person, it can be defined and special educational provision.

This is an interesting case which parents, young persons and advocates should be mindful of when considering the issue of transport. Too often the issue of transport is overlooked when considering educating and training, hence it can be a missed opportunity.

Bristol City Council – SEN Budget Reductions Quashed Due to Their Failure to Consult

Bristol City Council – SEN Budget Reductions Quashed Due to Their Failure to Consult

The Bristol parents who recently crowd funded to challenge their Local Authority’s (LA) decision to reduce services available to children and young people with Special Educational Needs and Disabilities (SEND) were rewarded with a decision in their favour.

The parents claimed that the LA had failed to consult before deciding to reduce budgets. The LA’s response was that they didn’t need to consult.

In the High Court, His Honour Judge Cotter QC, was not persuaded by the LA’s arguments and found they had not, as they were required to do, consult before reducing budgetary reductions to SEND services. To make things worse, he found that there was no evidence of regard by the LA to the need to safeguard and promote the welfare of children when making the decision, as required by section 11 of the Children Act 2004.

The result was that the LA were ordered to go back and think again.

The full decision can be found click here

Disability Discrimination Landmark Case Weakens Exclusion Loophole

Disability Discrimination Landmark Case Weakens Exclusion Loophole

On the 8th August 2018 the Upper Tribunal handed down its decision in C&C v The Governing Body of a School (click here) which is likely to be of assistance to many disabled children facing exclusion. The decision is somewhat dense but our summary will focus on what it means on a practical basis for schools and children.

The definition of disability is found (click here) in the Equality Act 2010 and this provides protection for children in school who satisfy this definition of disability. However, when it came to exclusions from school because of physically challenging behaviour, Governing Bodies often said that the behaviour for which the child was excluded falls within Regulation 4(1)(c) The Equality Act 2010 (Disability) Regulations 2010 (the Regulations’):

4.—(1) For the purposes of the Act the following conditions are to be treated as not amounting to impairments:—

(c) a tendency to physical ….. of other persons,

Hence, the protection afforded to the child by the Equality Act 2010 was lifted. In practical terms, children with an ASD, ADHD, Sensory Processing Disorders etc who were excluded because of behaviour which arose as a consequence of their disability (referred to in the decision as ‘Meltdowns’) were often left with no redress.

This matter was considered by the Upper Tribunal on more than one occasion but, for whatever reason, the Regulations (known as secondary legislation) were seen to apply in schools.

So, what has changed?

Upper Tribunal Judge Rowley looked at the European Convention on Human Rights specifically

Article 2 of the First Protocol

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions

And, ARTICLE 14 – Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

His conclusion was that Regulation 4(1) (c ) was incompatible and should be dis-applied, something that had not really been considered previously.

So, what does this mean for disabled children who have ‘meltdowns’ and are at risk of exclusion? It doesn’t mean that exclusion is not possible if a Governing Body can successfully make the argument that exclusion is a ‘treatment’ that  is ‘a proportionate means of achieving a legitimate aim’. The legitimate aim put forward often relates to ‘health and safety’ and the need to maintain good discipline within the school, but they would also have to show that the punitive sanction of exclusion was the only thing that can be done in the circumstances. It is also worth noting that, in our opinion, this would be a difficult argument to make if all reasonable adjustments had not been made for the child. What it does mean is that the shield provided to a Governing Body by the Regulations has gone.

When Health Care Provision (possibly) becomes Special Educational Provision

When Health Care Provision (possibly) becomes Special Educational Provision

The case of East Sussex County Council v JC (SEN): [2018] UKUT 81 (AAC) heard earlier in the year looked at the distinction between health care provision and special educational provision and raised the possibility that some seemingly settled assumptions are open to challenge.

The decision can be found here, but it will be useful if we look at a summary.

One of the issues before the SEND Tribunal was whether the motorised/ powered wheelchair (unhelpfully referred to as an inanimate object) used by a young man (William) with a number of impairments was special educational provision. They also considered whether the maintenance and repair of the chair was also special educational provision.  The expert evidence before the tribunal confirmed the importance of the chair to the young man’s education. It is worth remembering that, if Williams chair was unavailable due to fault, he could not attend college.

Williams parents maintained that the wheelchair did educate and train William as he had to learn how use the chair and also it developed his skill to independently find his way round the college he attended.

The SEND Tribunal decided that the chair was health care provision (the traditional view) whilst its maintenance was special educational provision on the basis that, if the chair didn’t work, he couldn’t be educated. The local authority was unhappy and appealed to the Upper Tribunal.

In the Upper Tribunal the Judge was not pleased with the separate classification given to the chair and its maintenance and repair by the SEND Tribunal and for this reason the LA’s appeal succeeded.  That said, rather than simply say that both were health care provision he left the matter to be decided by a new Tribunal. He did make the point that there was nothing to stop William’s chair being classified as special educational provision if there was evidence that it educated and trained him and the skills he obtained could not be gained in a very short time (like learning to make a cup of tea).

This is in line with s21(5) The Children and Families Act 2014 which states that:

“Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision)”

Any health care or social care provision allocated to a child or young person should be evaluated in terms of whether it educates and trains and a view should be taken as to whether the said provision should be classified as special educational provision. These classification issues are not insignificant since providing special educational provision cannot be constrained by budgets whereas other types of provision can be. Further the non-provision of special educational provision is more easily addressed.

AKO

10th August 2018