Update | Local government: Children and Families Bill

Despite the unusually small list of bills in the May 2013 Queen's Speech, as always, local government will be affected by a significant proportion of the new legislation, assuming this negotiates all parliamentary hurdles.

Having completed the House of Commons committee stage in April, the Children and Families Bill has been carried forward into the 2013/14 session of parliament. The bill has social, educational, employment and health aspects, all child-centred and manifesting the government's strong commitment to uphold family life. The centrepiece is reform of the special educational needs (SEN) system, providing the first major overhaul of the existing SEN legislation for over 30 years.

Other parts of the bill deal with changes to speed up the process of adoption, local authority responsibility for promoting the educational achievement of looked-after children; improvements to the operation of family justice; childminder agencies to be regulated by H.M. Chief Inspector of Education, Children's Services and Skills; the role and functions of the Children's Commissioner; new employment rights to the sharing of paid maternity leave between parents; time off work for antenatal care, and extension of the right to request ?flexible working.

Aim of reform

The bill follows up the Green Paper 'Support and Aspiration: a new approach to special educational needs and disability' of March 2012, and the government response 'Progress and Next Steps' of May 2012. The main thrust of the reforms is firstly to join up the process for assessment of needs, planning of resources and delivery of support across education, health and social care so that the existing system of a Statement of Educational Needs or Assessment of Learning Difficulties and separate Care Plan are replaced by an integrated Education, Health and Care (EHC) Plan. Local authorities will be obliged to co-operate with their partner service organisations - something which already happens in practice, but which needs and will get legislative underpinning for proper integration and the protection of service users. This will also receive reciprocal co-operation from Clinical Commissioning Groups (CCGs) under amendments to the Health and Social Care Act 2012. Secondly, to extend the system so that not only children of school age are covered, but also children from birth and young people up to age 25. The existing definitions of SEN from section 312 of the Education Act 1996 and of learning difficulty from section 15Z of the Education Act 1996 are used. In this way, the reforms are about the "how", as distinct from the "what", of the present system. ?A statutory code of practice for SEN is to ?be developed to appear in regulations ?in due course.

The "how" is defined in the bill in the provisions describing special educational provision, healthcare provision and social care provision (clause 21). Special educational provision is additional to or different from mainstream provision. It might include support from a specialist teacher, access to a specialist teaching programme, specialist ICT equipment or a specialist job coach; for children under two years old, it means educational provision of any kind. Healthcare provision means all forms of health services whether or not they are provided under the National Health Service. Social care provision is provision made by local authority social services. Healthcare provision or social care provision which is made wholly or mainly for the purposes of the education of a child or young person, is to be treated as special educational provision, reflecting case law.

The bill puts local authorities under a duty to identify all those children and young people in their area who have, or may have, special educational needs (clause 22). The duty applies to children and young persons living and being educated in the authority's area and those living in the area but who are educated outside the area. An authority can be alerted to the potential need by anyone, so that it must then consider whether there is a special educational need; alternatively, a statutory assessment can be requested by parents or young people under the provisions of clause 36.

CCGs (which replaced Primary Care Trusts from April 2013), NHS Trusts and NHS Foundation Trusts carrying out healthcare functions for school-age children must inform the local authority if they consider a child has or probably has a SEN, as well as informing the child's parents and offering the opportunity for discussion with them; they must also inform parents if they think a particular voluntary organisation is likely to be able to give advice or assistance with those needs (clause 24).

The local authority must carry out its functions in a way which encourages integration if this will promote wellbeing or improve the quality of special educational provision (clause 25). Reciprocal co-operation obligations are being placed on the healthcare bodies (by section 26 of the Health and Social Care Act 2012) and local authority social services (by clause 6 of the Care Bill).

Joint commissioning arrangements are to be agreed locally with CCGs (clause 26). The arrangements must cover what provision, and by whom that will be made to meet the need; what information and advice will be given, how this will be given, the handling of complaints and procedures for dispute resolution. Local authorities must act consistently with the arrangements and keep these under review and updated where necessary. Local authorities can (and well-managed authorities should) make these arrangements as part of the joint strategic needs assessments and joint health and wellbeing strategies developed under the Local Government and Public Involvement in Health Act 2007 section 116 as amended by the Health and Social Care Act 2012 section 192 and 193).

Both the extent of provision and whether the relevant needs are met are to be reviewed (clause 27).

Co-operation by local authorities is required both externally with the relevant bodies and internally between the different service areas (clause 28), with reciprocal obligations on governing bodies, proprietors and management committees to co-operate (clause 29). An authority can request co-operation for specific cases (clause 31).

Clause 30 requires publication by a local authority of information and advice about the "local offer" available to meet special educational needs. The local offer will include training, assistance to prepare for adulthood and independent living (such as finding employment or obtaining accommodation), and travel arrangements to reach educational institutions; also how ?to seek an assessment for an EHC plan, ?or make a complaint about the local ?offer (clause 32).

Parents can express a preference for a school including an academy or independent special school, and for 16-19 year-olds, a further education, sixth form or independent specialist college. Where no preference is expressed, the local authority must ensure the EHC plan provides for education in a mainstream setting (unless this is against the wishes of the young person or parent), and if this would damage the efficient education of others, there are no reasonable steps that could be taken to overcome this (clause 33). Mainstream schools educating a child with SEN must enable the child to take part in activities of the school with other children insofar as this is reasonably practicable and so long as this ensures the child receives the special educational provision needed, without damaging the education of other children ?or resulting in an inefficient use of ?resources (clause 35).

A statutory assessment can be requested by a parent, young person or school or post-16 educational institution's representative (clause 36), triggering the authority's duty to consider whether to assess, and inform of their decision.

Preparation, finalisation and implementation of EHC Plans are dealt with in clauses 37 - 42, a process in which following the pattern of the existing legislation, the parents and young person will have a voice. Most importantly, where a school or other educational institution is named in an EHC Plan, it must admit the child or young person (clause 43). Age is to be taken into account and an EHC Plan may last until age 25, or end sooner.

Service users are to be involved in annual reviews of individual EHC Plans (clause 44), and may have the option of a personal budget for their EHC Plan (clause 48). Hard-pressed local authority staff may not relish the prospect of having to make the effort to be more transparent and customer friendly, but the principle of better service to citizens is sound.

An EHC Plan will enable a local authority to continue services in the crossover period following the service user's 18th birthday but if the plan ends, provision will end ?also (clause 49).

In the event of dispute, the bill requires mediation to be considered before an appeal in respect of an EHC plan can reach the First Tier Tribunal (clauses 50 and 51).

Child's interest

Provision to meet special educational needs is a service vital for social justice, as well as being a significant budget item for local authority expenditure. These reforms should be welcomed as a rational and humane extension of a system built on the key principle that the child's interest is paramount. Operational changes required to put this legislation into effect will require careful planning and management with the usual resource allocation issues. Joining up public sector services is already well underway, and should be an efficient means of delivery.

The reforms demand a more user-friendly, customer-focused and transparent relationship between a local authority and its citizens. This should be a genuine improvement in standards of public service, although not necessarily a panacea removing all friction at this interface.