The importance of Part 3 of the Children and Families Act 2014
When it announced reforms to the local arrangements governing educational provision for those with special educational needs and disabilities (SEND) the Government undertook to make children and young people with these needs ‘authors of their own life stories’. The new arrangements are governed by part 3 of the Children and Families Act 2014 and local authorities (LAs) in England have been progressively implementing them over the past four years. One of the most important features of this new legislation is the new rights for children and young people with special educational needs (SEN). As the ‘authors’ statement implies, the Act contains a number of measures designed to ensure that the views and wishes of children and young people are heard and considered, both collectively and individually, throughout the various processes applied by local authorities (LAs). Collectively, when LAs are reviewing SEN provision and the ‘local offer’ (containing details of the sources of help and facilities in their area), and individually, for instance, when the child or young person’s needs are assessed or an education, health and care (EHC) plan is made for him or her. Most strikingly, young people aged 16 or over now have independent rights previously only held by parents, including rights of appeal and to opt for mediation. LAs have a duty to ensure that children and young people with SEN are provided with information, advice and support so that they are equipped to exercise their rights.
Rights on paper lack value unless delivered or enforceable in practice. To assess how far children and young people’s rights in this field are being realised on the ground, Professor Neville Harris and his research associate Dr Gail Davidge have been conducting independent research, funded by the Economic and Social Research Council, with the aim of discovering the type and extent of input that children and young people have had in the relevant decisions and the processes applied by LAs. From their survey of LAs, to which 56 local authorities contributed, and interviews with key professionals and administrators, Harris and Davidge have found that LAs seem to have made progress in terms of ensuring children and young people’s collective participation through consultation in respect of local provision. However, in the areas of decision making relating to individual children and young people, such as EHC planning and assessment, and in the provision of information, advice and support to facilitate their participation, much further progress is needed.
Implementation of participation rights of children and young people with SEN
According to our online survey of English LAs, the staff with SEND responsibilities in the majority of authorities have been trained in children and young people’s rights, but there were variations regarding the type, the extent and the source of this training. It is evident that the majority of LAs consult with children and young people when reviewing their local offer and SEN provision, but LAs also have an obligation to offer advice and information about SEND matters to children and young people. The survey found a large variation in the levels of accessibility of the information communicated to the children and young people about the services available to them on the LAs’ websites, which do not always provide alternative and accessible versions of the information. However, the survey indicates that LAs also make use of bodies such as Citizen’s Advice and Barnados to fulfil this duty.
There are three separate processes for redressing SEN grievances: disagreement resolution, mediation and appeal to the First-tier Tribunal (FtT). According to the survey, a young person hardly ever makes use of their right to seek redress autonomously.
One example of how LAs should engage with children and young people on an individual basis is during the process of assessing and agreeing upon on their needs regarding EHC. Young people rarely exercise their right to make requests for EHC assessments. It is their right not make such a request, not their parent or carer’s. Nevertheless, over three-quarters of LAs contact both the young person and their parent rather than the young person alone when deciding whether to carry out an EHC assessment. LAs usually consider the wishes of young people in this context but sometimes do not have time and resources to do so. If they conclude that the young person lacks the requisite mental capacity they will not engage with him or her on this issue. However, it is unclear whether the LAs are using the correct statutory test to determine whether a young person has capacity to make decisions for themselves.
What is the way forward?
The research is ongoing and currently involves case studies in three local authority areas which aim to provide child/young people and parent/carer perspectives. But on the basis of the research to date, Harris and Davidge consider that there is not yet a system supportive of the ideal of children and young people with SEND as ‘authors of their own life stories’. Going forward, LAs need to develop better strategies to involve children and young people in their EHC assessment planning. Also, improved resources and a change of attitude and understanding with regard to young people as autonomous agents, rather than simply dependents of their parents, is also required to facilitate improvements. LAs should also better inform young people about the different options of redress available to them and should provide more support for their use and participation. To ensure children’s and young people’s voices are properly heard, LAs need to improve the availability and quality of independent professional support and advice. From the Government’s perspective, LAs need more guidance around staff training so it is fit-for-purpose, consistent and properly evaluated, as well as more direction on different ways of publicising the local offer to facilitate greater and more meaningful engagement with the children and young people who require these services.