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Considering whether an assessment of post-detention education, healthand care needs is necessaryAdvice and information for an assessment of post-detention education,health and care needsPreparing an EHC plan for a detained person in custodyProvision of information, advice and supportPartial assessment on entry to or exit from custodyTransfer between places of relevant youth accommodationAppeals and mediationKeeping an EHC plan and arranging special educational provisionArranging health care provision for detained children and young peoplwith EHC plansMonitoring provision in custodyReview on release from youth custodyMoving to a new local authority on releaseLooked after children remanded or sentenced to custodyTransition from youth justice to a custodial establishment for adultsEducation on release for those in a custodial establishment for adultsCross-border 224224311 Resolving disagreements244What this chapter coversRelevant legislationPrinciples for resolving disagreementsEarly resolution of disagreementsDisagreement resolution arrangements and mediationDisagreement resolution servicesContracting disagreement resolution servicesMediationContracting services for mediation and mediation informationRoutes to mediationMediation on matters which can be appealed to the TribunalMediation advice before mediationExceptions to the requirement to contact a mediation adviserGoing to mediation about matters which can be appealed to the TribunalMediation on the health and social care elements of an EHC planEffective mediationChildren and young people in youth custodyRegistering an appeal with the 2552572582589

Parents’ and young people’s right to appeal to the Tribunal about EHC needsassessments and EHC plansThe First-tier Tribunal (SEN and Disability)The role and function of the TribunalWho can appeal to the Tribunal about EHC needs assessments and plansWhat parents and young people can appeal aboutConditions related to appealsDecisions the Tribunal can makeHow parents and young people can appealDisability discrimination claimsExclusionLegal aidComplaints proceduresEarly education providers’ and schools’ complaints proceduresComplaints to the Secretary of StateComplaints to OfstedPost-16 institution complaintsLocal Authority complaints proceduresLocal Government OmbudsmanThe Parliamentary and Health Service OmbudsmanJudicial reviewNHS ComplaintsComplaints about social services 6266267268268269270270271Annex 1: Mental Capacity273Annex 2: Improving practice and staff training in educationsettings276Glossary of terms278References28710

ForewordFrom the Parliamentary Under-Secretary of State for Healthand the Parliamentary Under-Secretary of State forChildren and FamiliesOur vision for children with special educational needs and disabilities is the same asfor all children and young people – that they achieve well in their early years, atschool and in college, and lead happy and fulfilled lives.This new Special Educational Needs and Disability Code of Practice will play a vitalrole in underpinning the major reform programme.For children and young people this means that their experiences will be of a systemwhich is less confrontational and more efficient. Their special educational needs anddisabilities will be picked up at the earliest point with support routinely put in placequickly, and their parents will know what services they can reasonably expect to beprovided. Children and young people and their parents or carers will be fully involvedin decisions about their support and what they want to achieve. Importantly, theaspirations for children and young people will be raised through an increased focuson life outcomes, including employment and greater independence.Local authorities and their local health partners have been working together toprepare for the new arrangements, to jointly plan and commission services forchildren and young people who have special educational needs or are disabled.Those with more complex needs will have an integrated assessment and whereappropriate a single Education, Health and Care plan for their support.The Code of Practice is the product of extensive consultation, and draws on theexperience of pathfinder local authorities which have been piloting new approacheswith local communities. We have listened to a wide range of individuals and groupsand the result is a Code which will help everyone working with children and youngpeople with special educational needs and disability to secure for them the outcomesfrom education, health and social care which will make the biggest difference to theirlives.DR DAN POULTERParliamentary Under-Secretary of Statefor HealthEDWARD TIMPSONParliamentary Under-Secretary of Statefor Children and Families11

IntroductionAbout this guidancei.This Code of Practice provides statutory guidance on duties, policies and proceduresrelating to Part 3 of the Children and Families Act 2014 and associated regulationsand applies to England. It relates to children and young people with specialeducational needs (SEN) and disabled children and young people. A ‘young person’in this context is a person over compulsory school age and under 25. Compulsoryschool age ends on the last Friday of June in the academic year in which theybecome 16. For ease of reference, young people are referred to in this Code ofPractice as ‘over 16’.In this Code of Practice, where the text uses the word ‘must’ it refers to a statutoryrequirement under primary legislation, regulations or case law.The bodies listed in paragraph iv. must have regard to the Code of Practice. Thismeans that whenever they are taking decisions they must give consideration to whatthe Code says. They cannot ignore it. They must fulfil their statutory duties towardschildren and young people with SEN or disabilities in the light of the guidance set outin it. They must be able to demonstrate in their arrangements for children and youngpeople with SEN or disabilities that they are fulfilling their statutory duty to haveregard to the Code. So, where the text uses the word ‘should’ it means that theguidance contained in this Code must be considered and that those who must haveregard to it will be expected to explain any departure from it.Expiry or review dateii.This guidance will be kept under review and updated when necessary.To which legislation does this guidance refer?iii.This guidance refers to Part 3 of the Children and Families Act 2014 and associatedregulations. The regulations associated with the Children and Families Act 2014 are: The Special Educational Needs and Disability Regulations 2014 The Special Educational Needs (Personal Budgets) Regulations 2014 The Special Educational Needs and Disability (Detained Persons)Regulations 2015 The Children and Families Act 2014 (Transitional and Saving Provisions)(No2) Order 201412

Who must have regard to this guidance?iv.This Code of Practice is statutory guidance for the following organisations: local authorities (education, social care and relevant housing and employmentand other services) the governing bodies of schools, including non-maintained special schools the governing bodies of further education colleges and sixth form colleges the proprietors of academies (including free schools, university technicalcolleges and studio schools) the management committees of pupil referral units independent schools and independent specialist providers approved underSection 41 of the Children and Families Act 2014 all early years providers in the maintained, private, voluntary and independentsectors that are funded by the local authority the National Health Service Commissioning Board clinical commissioning groups (CCGs) NHS Trusts NHS Foundation Trusts Local Health Boards Youth Offending Teams and relevant youth custodial establishments The First-tier Tribunal (Special Educational Needs and Disability) (see v.)The First-tier Tribunal (Special Educational Needs andDisability)v.When considering an appeal from a parent or young person the First-tier Tribunal(Special Educational Needs and Disability) (‘the Tribunal’) must have regard to thisCode of Practice. The Tribunal will expect local authorities, early education settings,schools and colleges to be able to explain any departure from the Code, where it isrelevant to the case it is considering.Changes from the SEN Code of Practice (2001)vi.The main changes from the SEN Code of Practice (2001) reflect the changesintroduced by the Children and Families Act 2014. These are:13

The Code of Practice (2014) covers the 0-25 age range and includesguidance relating to disabled children and young people as well as those withSEN There is a clearer focus on the participation of children and young people andparents in decision-making at individual and strategic levels There is a stronger focus on high aspirations and on improving outcomes forchildren and young people It includes guidance on the joint planning and commissioning of services toensure close co-operation between education, health and social care It includes guidance on publishing a Local Offer of support for children andyoung people with SEN or disabilities There is new guidance for education and training settings on taking agraduated approach to identifying and supporting pupils and students withSEN (to replace School Action and School Action Plus) For children and young people with more complex needs a co-ordinatedassessment process and the new 0-25 Education, Health and Care plan (EHCplan) replace statements and Learning Difficulty Assessments (LDAs) There is a greater focus on support that enables those with SEN to succeed intheir education and make a successful transition to adulthood Information is provided on relevant duties under the Equality Act 2010 Information is provided on relevant provisions of the Mental Capacity Act 2005 There is new guidance on supporting children and young people with SENwho are in youth custody.Implementation of the Code of PracticeImplementationvii.From 1 September 2014 the majority of Part 3 of the Children and Families Act 2014,its associated regulations and this Code of Practice will be in force, subject to anytransitional arrangements.viii.From 1 September 2014 all the organisations listed in paragraph iv. must haveregard to this Code of Practice.14

ix.Subject to any transitional arrangements made, from that date the following guidancewill cease to have effect: SEN Code of Practice (2001) Inclusive Schooling (2001) Section 139A Learning Difficulty Assessments Statutory Guidance (2013)Transitional arrangementsx.From 1 September 2014 transitional arrangements will be in place to support thechangeover from the current system to the new system in a phased and orderedway. These arrangements, which are set out in a statutory transitional order andaccompanied by transitional guidance, will facilitate the transfer of those withstatements to EHC plans. They ensure that during the transition period localauthorities must continue to comply with elements of the Education Act 1996 inrelation to children with statements, and the Learning and Skills Act 2000 in relationto young people who have had Learning Difficulty Assessments and remain ineducation or training (provided they still have learning difficulties).xi.The legal test of when a child or young person requires an EHC plan remains thesame as that for a statement under the Education Act 1996. Therefore, it is expectedthat all those who have a statement and who would have continued to have oneunder the current system, will be transferred to an EHC plan – no-one should losetheir statement and not have it replaced with an EHC plan simply because thesystem is changing. Similarly, local authorities have undertaken LDAs for youngpeople either because they had a statement at school or because, in the opinion ofthe local authority, they are likely to need additional support as part of their furthereducation or training and would benefit from an LDA to identify their learning needsand the provision required to meet those needs. Therefore, the expectation is thatyoung people who are currently receiving support as a result of an LDA and remainin further education or training during the transition period, who request and need anEHC plan, will be issued with one.xii.Guidance on the provisions in the Children and Families Act 2014 relating to those inyouth custody, which came into force in April 2015, is set out in Chapter 10.Special educational needs (SEN)xiii.A child or young person has SEN if they have a learning difficulty or disability whichcalls for special educational provision to be made for him or her.xiv.A child of compulsory school age or a young person has a learning difficulty ordisability if he or she:15

has a significantly greater difficulty in learning than the majority of others ofthe same age, or has a disability which prevents or hinders him or her from making use offacilities of a kind generally provided for others of the same age inmainstream schools or mainstream post-16 institutionsxv.For children aged two or more, special educational provision is educational ortraining provision that is additional to or different from that made generally for otherchildren or young people of the same age by mainstream schools, maintainednursery schools, mainstream post-16 institutions or by relevant early years providers.For a child under two years of age, special educational provision means educationalprovision of any kind.xvi.A child under compulsory school age has special educational needs if he or she islikely to fall within the definition in paragraph xiv. above when they reach compulsoryschool age or would do so if special educational provision was not made for them(Section 20 Children and Families Act 2014).xvii.Post-16 institutions often use the term learning difficulties and disabilities (LDD). Theterm SEN is used in this Code across the 0-25 age range but includes LDD.Disabled children and young peoplexviii.xix.Many children and young people who have SEN may have a disability under theEquality Act 2010 – that is ‘ a physical or mental impairment which has a long-termand substantial adverse effect on their ability to carry out normal day-to-dayactivities’. This definition provides a relatively low threshold and includes morechildren than many realise: ‘long-term’ is defined as ‘a year or more’ and ‘substantial’is defined as ‘more than minor or trivial’. This definition includes sensory impairmentssuch as those affecting sight or hearing, and long-term health conditions such asasthma, diabetes, epilepsy, and cancer. Children and young people with suchconditions do not necessarily have SEN, but there is a significant overlap betweendisabled children and young people and those with SEN. Where a disabled child oryoung person requires special educational provision they will also be covered by theSEN definition.The Equality Act 2010 sets out the legal obligations that schools, early yearsproviders, post-16 institutions, local authorities and others have towards disabledchildren and young people: They must not directly or indirectly discriminate against, harass or victimisedisabled children and young people16

They must not discriminate for a reason arising in consequence of a child oryoung person’s disability They must make reasonable adjustments, including the provision of auxiliaryaids and services, to ensure that disabled children and young people are notat a substantial disadvantage compared with their peers. This duty isanticipatory – it requires thought to be given in advance to what disabledchildren and young people might require and what adjustments might need tobe made to prevent that disadvantage Public bodies, including further education institutions, local authorities,maintained schools, maintained nursery schools, academies and free schoolsare covered by the public sector equality duty and, when carrying out theirfunctions, must have regard to the need to eliminate discrimination, promoteequality of opportunity and foster good relations between disabled and nondisabled children and young people. Public bodies also have specific dutiesunder the public sector equality duty and must publish information todemonstrate their compliance with this general duty and must prepare andpublish objectives to achieve the core aims of the general duty. Objectivesmust be specific and measurable. The general duty also applies to bodiesthat are not public bodies but that carry out public functions. Such bodiesinclude providers of relevant early years education, non-maintained specialschools, independent specialist providers and others making provision that isfunded from the public purse.xx.The duties cover discrimination in the provision of services and the provision ofeducation, including admissions and exclusions. All providers must makereasonable adjustments to procedures, criteria and practices and by the provision ofauxiliary aids and services. Most providers must also make reasonable adjustmentsby making physical alterations. Schools and local authority education functions arenot covered by this last duty, but they must publish accessibility plans (and localauthorities, accessibility strategies) setting out how they plan to increase access fordisabled pupils to the curriculum, the physical environment and to information.xxi.School governing bodies and proprietors must also publish information about thearrangements for the admission of disabled children, the steps taken to preventdisabled children being treated less favourably than others, the facilities provided toassist access of disabled children, and their accessibility plans.xxii.Where a child or young person is covered by SEN and disability legislation,reasonable adjustments and access arrangements should be considered as part ofSEN planning and review. Where school governors are publishing information about17

their arrangements for disabled children and young people, this should be broughttogether with the information required under the Children and Families Act 2014.xxiii.Here, and throughout this Code the term ‘parent’ includes all those with parentalresponsibility, including parents and those who care for the child.Related legislation and guidancexxiv.Where appropriate, references are made in this Code to other relevant legislation.The Code does not give guidance in relation to that legislation but signals where itcan be found in the References section at the end of this Code.xxv.Organisations may find it helpful to consider the following related guidance: Working Together to Safeguard Children (2013): Statutory guidance fromthe Department for Education which sets out what is expected oforganisations and individuals to safeguard and promote the welfare ofchildren The Children Act 1989 Guidance and Regulations Volume 2 (CarePlanning Placement and Case Review) and Volume 3 (PlanningTransition to Adulthood for Care Leavers): Guidance setting out theresponsibilities of local authorities towards looked after children and careleavers Equality Act 2010: Advice for schools: Non-statutory advice from theDepartment for Education, produced to help schools understand how theEquality Act affects them and how to fulfil their duties under the Act Reasonable adjustments for disabled pupils (2012): Technical guidancefrom the Equality and Human Rights Commission Supporting pupils at school with medical conditions (2014): statutoryguidance from the Department for Education The Mental Capacity Act Code of Practice: Protecting the vulnerable(2005)18

1 PrinciplesWhat this chapter coversSection19 of the Children and Families Act 2014 sets out the principles underpinningthe legislation and the guidance in this Code of Practice. This chapter sets out thoseprinciples and how they are reflected in the chapters that follow.Relevant legislationSection 19 of the Children and Families Act 2014Principles underpinning thi

Requesting an Education, Health and Care needs assessment 103 Involving parents and pupils in planning and reviewing progress 104 Use of data and record keeping 105 Publishing information: SEN information report 106 The role of the SENCO in schools 108 Funding for SEN support 109. 7 Further education 111. What this chapter covers 111