Disability Rights UK Briefing on Children and Families Bill/ SEN and LDA reform
Disability Rights UK welcomes proposals to reform the current system of Special
Educational Needs (SEN) statements and Learning Difficulty Assessments (LDAs). The
proposals have the potential to improve coordination between the multiple agencies involved
in supporting disabled people and to help smooth transition into post 16 education and
training. We also welcome the recent Select Committee scrutiny of the Government’s
proposals which made some valuable recommendations for improvement. 1
Disability Rights UK is led, run and controlled by disabled people. We have particular
expertise in the area of supporting young people into post 16 education and training gained
from incorporating some of services previously delivered by Skill: National Bureau for
Disabled Students. This includes providing the only dedicated pan-disability disabled
students’ helpline covering all aspects of post-sixteen education and training. This gives us
a distinct perspective on this legislation based on the experience of disabled learners.
We are concerned that the discussion to date has not adequately reflected the needs of this
group of disabled people. Instead it has been dominated by those working with or supporting
children who have a critical contribution to make, but the voice of disabled learners in the
post-16 sector should also be heard.
The majority of children with a statement of Special Educational Needs are disabled2 and will
continue to need support once they leave school and as they become young adults. The
reform of the system must address the needs of the whole age range. It should be based on
the principles of promoting the social model of disability, supporting greater independence
and reinforcing the equality and human rights of disabled people.
Key issues

Protecting rights
The Minister has said that the “protections that parents and young people have in the current
system will be carried forward into the new system” and that “parents should not have to
battle to secure the support that they think should be readily available”.3
We believe that this means that any new related guidance or codes of practice must be
statutory, reflecting the status of the current SEN Code and LDA Guidance. People have to
fight to get the services they should get under these and any weakening of their status would
be a retrograde step and run counter to the Minister’s stated aim. However, there is also a
need to reflect the provisions of the Equality Act 2010 and to remind education and training
1
House of Commons Education Committee. 12/12/12 Pre-Legislative Scrutiny: Special Educational
Needs
2
DfE: Special Educational Needs in England, January 2012 available at
www.education.gov.uk/rsgateway/DB/SFR/s001075/index.shtml
3
Letter from Edward Timpson MP to Christine Lenehan 22/11/12
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providers of their responsibilities under that legislation. Any new legislation and guidance
must encourage provision to be as inclusive as reasonably practical rather than just focusing
on providing something different for those disabled learners who qualify for an Education
and Health Care Plan (EHCP).
The proposed Local Offer will be an essential element of this and we would want to see
nationally set standards for the Local Offer and involvement by Local Authorities of disabled
people in developing the Local Offer.
Consequently we are concerned about the definition of Special Educational Needs which is
based on the idea of defining someone by their need for “educational provision which is
additional to, or otherwise different from the educational provision made generally”.4 We
believe this reinforces the medical model of disability and undermines an inclusive approach,
particularly as it is not clear what provision will be made for those who are currently
supported through School Action or School Action Plus. To help reinforce this, and to avoid
confusion, we would rather see the broader terminology that is currently used in post 16
education Learning Difficulty and or Disability used across the whole age range (Learning
Difficulty is currently used in the LDA Guidance and is defined in similar way to SEN but
without the reference to special provision).
If the term SEN is retained we will either have a confusion of terms used at different ages, or
the use of SEN in post 16 settings where there is already often a more individualised learner
centred approach adopted.
Central to this is the voice of the disabled learner themselves. Currently the LDA Guidance
states that LDAS must take account of the young person’s wishes, this requirement must be
reflected in the way EHCPs are produced. EHCPs should reflect the aspirations and
outcomes sought by disabled learners themselves. We recognise the importance of
engaging parents of children in developing provision, but it should be a right of every
disabled learner to have an input into shaping the support available to them if they so wish.

Outcomes and monitoring
Current LDA guidance has a clear reference to planning for progression towards positive
outcomes including greater independence and employment. Bringing LDAs and SEN
statements together offers the opportunity for this to be embedded across the system and
planned for in a more integrated way. We would like to see these wider outcomes included
where relevant in EHCPs from year nine (in line with current guidance around transition
planning) if not before. We also believe that EHCPs should be continued into higher
education and apprenticeships.
Education providers need to be incentivised to meet the needs of learners who may not
achieve qualification success or go on to higher education. The NAO report on post-16
education highlighted the wider financial benefits of increasing independence and
employability; goals that many disabled people have for themselves. 5 We therefore strongly
support the NAO recommendation that Government should:
4
5
Special Educational Needs Code of Practice November 2001
NAO 2011 Oversight of Special education for Young People Aged 16-25
2
Standardise collection of destination data based on clearer specification of desired
employability and independence outcomes.
We believe this would both encourage providers and support the Minister’s aim of not
wanting people to have to battle for the right support.
It is also important to recognise that disabled people may wish to re enter education or
training after having left it. Currently it is proposed that EHCPs will end when the young
person has left education. There must be a way for ECHPs to be restarted quickly. For those
people who have acquired a disability later on (or whose disability has become an issue due
to changes in the educational or training setting) a quick assessment needs to be available.

Responsibility and accountability
Currently people have to fight to get the support they are legally entitled to and we hope that
the new proposals can go some way towards tackling this. The new system has the potential
to encourage much greater cooperation across different agencies involved in supporting
disabled learners. However, as the Select Committee noted the current proposals do not do
enough to ensure that this co-operation takes place.
We would like the proposed Education and Health Care Plans (EHCPs) to spell out who is
responsible for delivery of each element and for this to be backed up by an obligation on all
agencies including health to deliver the support identified. In turn this should be underpinned
by effective and coherent redress mechanisms.
We are concerned that the proposed extension of access to First Tier Tribunals contained in
the draft Bill will put extra pressure on a system that is already struggling, while potentially
undermining the ability of people to access judicial review (as this is not generally available
where an alternative remedy is available). As Tribunals do not have the power to order
interim relief, the potential delay while a disabled learner tries to get the required support
through tribunal might have the unwanted impact of increasing the already high number of
disabled people who end up not in employment education or training (NEET). Therefore
before access is expanded it is essential it is improved to allow interim relief powers, to
increase the number of panel members and to ensure it is accessible to disabled learners. It
is also essential that the proposed mediation stage is designed to be accessible for disabled
learners as well as parents and does not create further delays.
Conclusion
Both the SEN and LDA systems are crying out for reform and the Government proposals go
some way to addressing the shortcomings of the current set up. However, it is vital that the
voice of disabled learners is heard, that the new system is fit for purpose across the whole
age range (and not just seen as an extension of the current SEN/children approach) and that
existing rights are not undermined. We are glad that the Minister has told the Education
Select Committee that while he hopes to stick to the planned timescale, the important thing
is to get the legislation right. Disability Rights UK is willing to work to help make this happen.
January 2013
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