The Children and Families Act 2014 introduced changes to the arrangements for support that children and young people with special educational needs receive at nursery, school and college.
Since September 2014, children and young people who have a statement of special educational needs (statement), or Learning Difficulty Assessment (LDA) are being brought under the new scheme.
The Government expects the transition from statements to plans (the new document for meeting the most complex SEN) will take up to three and a half years.
Learning disability assessments ceased to have legal status after 31 December 2016 and, where appropriate, should have been converted to an Education, Health and Care (EHC) plan.
This information looks at how this transition will be implemented.
Where a statement is already in place
While your child’s statement remains in place, you will keep your legal rights under the previous system as the law and regulations of that system continue to apply until either:
- the local authority (LA) ceases the statement
- the statement ceases because your child leaves education
- there is a ‘transfer review’ and an Education, Health and Care (EHC) plan is issued or the LA decides your child doesn’t need an EHC plan.
You are still entitled to request a reassessment of your child’s statement. However, if the LA agrees to undertake the reassessment, they can conduct an EHC needs assessment and transfer your child to the new system.
You can appeal to the First-tier Tribunal for Special Educational Needs and Disabilities (SEND) for reasons set out in previous legislation, but the transition arrangements allow the following possible changes to the outcome of your appeal:
- if the tribunal upholds your appeal against a refusal to undertake a statutory assessment of your child’s needs, they may decide the LA must carry out an EHC needs assessment
- if the tribunal upholds your appeal against a refusal to undertake a reassessment of your child’s needs (where they already have an assessment), the LA can treat it as an EHC needs assessment with your agreement
- if the tribunal upholds your appeal against your local authority’s decision not to issue a statement for your child after the statutory assessment has taken place, an EHC plan could be issued, with your agreement.
Learning disabilty assessments
LDAs have no legal effect after 31 December 2016. Your local authority shouldl have completed the transition process before this date.
Transfer of your child’s statement of special educational needs to an EHC plan must be initiated by the LA in the form of a ‘transfer review’. This should replace the usual annual review of your child’s statement at the relevant time (see ‘Transfer timing’).
You and your child must be invited to the transfer review. An EHC needs assessment must be conducted as part of this, although there is no need for your LA to seek additional advice for the assessment if there is already up-to-date and relevant information available.
Once the transfer process is completed you will be given the right to appeal to the First tier Tribunal for Special Educational Needs and Disabilities (SEND) under the The Children and Families Act 2014.
LAs are required to transfer all children with statements to the new system by 1 April 2018. The government has set out periods of time when it expects the transfer of statements to plans for specific groups of children to happen.
These are as follows:
Between 1 September 2015 and 31 March 2018, LAs must transfer children with statements to the new system in school Year 9 and before they transfer from:
- early years setting to school (even if they remain at the same school)
- infant to junior school
- primary to middle school
- secondary school to Post 16 setting or apprenticeship
- mainstream to special school or vice versa.
In addition, priority should be given between 1 September 2015 and 31 March 2018 to transfer the following groups of children and young people with statements to the new system:
- all those is Year 6 – not just those transferring from one setting to another
- all those in Year 11 – not just those moving into further education
- those leaving custody
- those who were issued with non-statutory EHC plans before 1 September 2014 (those who were part of the ‘Pathfinder’ projects)
- those moving between one local authority and another.
Children and young people in youth custody
Local authorities must not
cease a statement of SEN or EHC plan because a child or young person enters custody. To transfer a detained person from a statement of SEN to an EHC plan
a local authority must undertake a transfer review. The process includes undertaking an EHC needs assessment
- the detained person’s parents where the detained person is a child, or the young person themselves
- the person in charge of the relevant youth accommodation
- local health services
- any education provider
- social services and the youth offending team.
Free legal advice and representation can be sought from Project EPIC, a service run by lawyers to help to children and young people aged 18 and under who are in custody get the education they need.
Further help from the NAS
For parents trying to obtain an appropriate education for their child information and advice is available from our Education Rights Service.
For general help and information about autism spectrum disorders (ASDs) and related issues, contact our Autism Helpline.
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