The new legal framework for children
and young people with SEN in youth
custody
This material has been developed by the Council for
Disabled Children working with:
• Department for Education
• Department of Health
• Ministry of Justice
• Portsmouth City Council
• G4S Care and Justice
Services (UK)
• Targeted Support and Youth
• Youth Justice Board
Justice Service,
Nottinghamshire County
• National Offender Management
Council
Service, Young People’s Group
• Information, Advice and
Support Services Network
• Barnardos
• The Communications Trust
• Clayfields House Secure
Children’s Home
• Local Government Association
• Medway Educational
Psychology Service
Key aspects of the wider SEND Reforms
• The new SEND system started on September 1st 2014. The
provisions applying to detained children and young
people commence on 1st April 2015.
• The key aspects of the new SEND system are:
• 0- 25 system (For detained CYP the new approach applies to age 18 and under)
• Focus on outcomes and preparing for adulthood
• Joint working between education, health and social care
• Principles of engaging with young people, children and their
parents with greater transparency/information about what is
available in the local area
• Education, health and care plans replace Statements of
Special Educational Needs and Learning Difficulty
Assessments.
The SEND Code of Practice 0-25 years
•
The Code of Practice is statutory guidance for
organisations who work with and support children and
young people with SEN and a range of institutions and
bodies must have regard to it.
• Specifically in relation to youth offending, Youth
Offending Teams and persons in charge of relevant
youth accommodation must have regard to the Code.
• Chapter 10 of the Code relates to children and young
people with SEN detained in custody. This should be read
alongside the whole of the Code of Practice.
Youth custody: Principles of the new approach
• The home LA continuing engagement and responsibility
for arranging a CYP’s special educational provision while
they are in custody
• The child or young person receives appropriate special
educational provision and health provision in custody
• Identifying need and ensuring that provision continues on
release will help a child or young person’s resettlement
• Making a request and getting an assessment underway in
custody will be a good use of time
Facts and Figures
•December 2014: population (inc. 18s) in custody was 1,068.
•The majority of this population are male, aged between 15-17.
•In 2012/13 the average length of time in custody was 85 days.
• A MoJ consultation document in 2013 set out:
• Around 18% of sentenced young people in custody have a
statement
• Of 15-17 year old males in YOIs 88% had been excluded
from school at some point and 36% were aged under 14
when they last attended school
•Over 60% of people in youth justice estate have difficulties with
speech, language or communication.
Application of the legislation
These provisions under the Children and Families Act
only apply to:
• Children and young people aged 18 and under (i.e. up to
their 19th Birthday)
• Children and young people who have been sentenced or
remanded by the Courts to a Young Offender Institution, a
Secure Training Centre or a Secure Children’s Home
(relevant youth accommodation) in England
• In future, secure colleges
• Children voluntarily detained in a Secure Children’s Home
Who’s who?
The appropriate person:
• The child’s parent or the young person if they are over
compulsory school age
• ‘Parent’ includes any person who is not a parent of the child
but has parental responsibility or who cares for him or her
Home local authority:
• The LA which maintained the EHCP in the community.
• A request for an assessment must be made to the LA where
the child/young person is ‘ordinarily resident’.
Youth Offending Team:
• Multi agency teams in every local authority area.
• Key point of contact between the establishment and the
local authority.
Who’s who?
Person in charge of relevant youth accommodation
• The Governor, Director or Principal
Education Providers
• In YOIs are contracted and funded by the YJB
• Carry out literacy and numeracy assessments. Contracted to
meet the educational needs of all detained CYP
• Provide the special educational provision which the Act
requires the home LA to arrange
Health Providers
• In YOIs are centrally contracted and funded by NHS England
• Carry out comprehensive health assessments
• Provide the health provision which the Act requires NHS
England to arrange
CYP with SEN without EHC plans
The Code sets out that whether a CYP has an EHC plan or
not:
• The principles of the reforms support the timely identification
and assessment of SEN and provision of high quality support
at the earliest opportunity
• The LA must promote the fulfilment of the detained CYP’s
learning potential while they are in custody and on release
• Providers should meet the educational needs of all detained
persons, including those with SEN
• Education providers should ensure SEN provision,
identification and support follows the model for schools and
colleges
Assessments for CYP in custody
• A young person, a child’s parent or the person in charge of
the custodial establishment has the right to request an EHC
needs assessment from their home local authority.
• Anyone can bring a child or young person to the home
LA’s attention (e.g. the YOT).
• The LA must determine within 6 weeks whether to conduct
an assessment.
• The overall timescale from request to a final EHC plan is 20
weeks (with exemptions apply as in the community).
Considering an EHC needs assessment
• When considering whether to assess the LA must (in
addition to wider list in the community):
• consult the young person or the child’s parent
• consult the person in charge of the secure establishment
• notify the YOT and NHS England that this is happening.
• The LA must secure an assessment if the child or young
person has or may have SEN and it may be necessary for
special educational provision to be made in accordance with
an EHC plan on their release.
• LAs may develop criteria to guide them but each case must
be considered individually and be prepared to depart from
those criteria, e.g. if there is a lack of evidence because the
CYP has been out of school.
EHC needs assessment and plan in custody
• Assessment and development of plans to start in custody.
• Focusing on the CYP’s needs and provision when they are
back in the community.
• Advice and information must be sought from:
• Person in charge of the establishment, inc. education
provider
• Health care professionals with a role in the CYP’s health
• Youth offending team
• The content of the plan must be agreed by the home CCG.
• Those who are asked for advice must respond within 6
weeks.
Moving in/out or transferring establishment
• If a child or young person is released or detained part way
through the EHC needs assessment or planning process, the
process must continue.
• The statutory timescales still apply
• The LA may use any of the steps already taken in custody or
in the community as part of the continuing process.
• Transfers from one secure establishment to another:
• If the CYP has an EHC plan the LA must send it to the
new establishment
• If the CYP is part way through the assessment/plan
process the LA must continue.
Appeals and mediation
• The child’s parent or the young person can appeal to the
SEND Tribunal if they do not agree with the LA decision:
• not to carry out an EHC needs assessment;
• not to prepare an EHC plan following an assessment; or
• Section I of the EHC plan (educational institution named)
• Before registering an appeal the child’s parent or young
person must consider mediation.
• If they wish to pursue mediation the LA must arrange for it
to take place. Most mediation sessions should take place in
the establishment.
• The person in charge of the establishment must support this
process by providing access to the CYP for mediation
sessions.
CYP with EHC plans
• A CYP may have an EHC plan when they enter custody or
may have been assessed and remain in custody when their
final plan is issued.
• The YOT must notify the team with responsibility for SEN
in the CYP’s home LA that they have gone into custody.
• The home LA must send the EHC plan to the YOT, the
person in charge of the establishment and NHS England
within 5 working days.
• The LA must keep the EHC plan – it must not be ceased.
CYP with EHC plans (2)
• The LA must keep the EHC plan and must arrange
appropriate special educational provision for the CYP as set
out in the plan.
• NHS England must arrange appropriate health provision for
the CYP as set out in the EHC plan.
• In practice the education and health providers in the
custodial establishment will be delivering these duties under
their contracts.
•
When the CYP is released their EHC plan must be
considered as any other EHC plan in the community and the
home LA must review the plan.
Arranging provision in custody
• The home LA and NHS England must arrange SEN and health
provision in the CYP’s plan.
• If this is not practicable, provision as closely as possible to the
plan must be arranged.
• What might not be ‘practicable’? E.g.
• Section F sets out use of computer software which is prohibited
• Section F specifies a catering course but rules of the
establishment do not allow the CYP to access this type of course
• If provision is not currently available it does not necessarily
mean that it is impracticable to provide it.
• In practice these decisions will be informed by and taken with
the education and health providers and the person in charge
of the establishment.
Arranging provision in custody (2)
• If the LA or NHS England decide that the EHCP provision is not
appropriate, they must arrange appropriate provision.
• Not appropriate = does not meet the CYP’s needs.
• The LA should seek the advice of a professional and then
arrange appropriate provision.
• In practice these decisions will be informed by and taken with
the education and health providers in the establishment.
• The law does not permit the LA to formally reassess or to
formally amend the EHC plan in custody. Other ways of
recording these decisions may be necessary and this should
trigger a re-assessment on release.
Monitoring progress & reviewing the EHCP
• While in custody the EHC plan should continue to be used to
actively monitor a CYP’s progress towards their outcomes.
• The LA should conduct a monitoring meeting and continue
to do so every 12 months.
• Taking a similar approach to that used for an annual review
in the community would be appropriate.
• On the CYP’s release the LA must review their plan as soon
as possible on release. Reviewing the EHCP as soon as
possible on release to ensure it still reflects the CYP’s needs
and has an appropriate education placement is important.
Information, Advice and Support
• If the LA considers that information, advice or support is
necessary for the child, their parent or the young person to
enable them to take part effectively in an EHC needs
assessment, they must provide it.
• Information, advice and support is provided by Information
Advice and Support Services as set out in Chapter 2 of the
Code of Practice.
• Information, advice and support is specific to SEN and
disability. It is not the same as any requirements to provide
information, advice and guidance (IAG) to detained CYP.
• The LA must make parents and young people aware of their
rights to appeal to the SEND Tribunal.
Transitional arrangements
• All statements must be transferred to EHCPs by April 2018
• All LDAs must be transferred to EHCPs by September 2016
Statements of SEN
• From April 2015 for CYP entering or in custody with a
statement of SEN the LA must treat provision as if an EHCP.
• The right to request an EHC assessment whilst in custody
commences in April 2015 – including those with a statement.
• LAs must conduct a ‘Transfer review’ on release and may do so
in custody.
• From 1 April 2018 provision in a statement must be deemed as
if an EHCP. LA must conduct assessment as soon as possible.
Transitional arrangements
Learning Difficulty Assessments
• The right to request an EHC needs assessment whilst in
custody commences in April 2015 – including those who have
a LDA.
• As in the community those with LDAs will not get a transfer
review but LAs should take reasonable steps to inform those
with LDAs of their right to request an EHC needs assessment.
• From September 2016, if a young person has an LDA the LA
must carry out an EHC needs assessment as soon as possible
where it believes the young person will return to education
on release.
More information
• Regulations on detained persons with SEN and a redrafted
section of the Code of Practice were published in January
2015. These documents can be found here:
http://www.legislation.gov.uk/id/uksi/2015/62
https://www.gov.uk/government/publications/send-code-ofpractice-0-to-25
• CDC has produced a set of implementation support materials
including a general a factsheet setting out the new legal
framework and targeted information sheets for
establishments and YOTs.
http://www.councilfordisabledchildren.org.uk/resources
Workshop Activities
If this presentation is being used as part of a workshop, the
following the scenario planning exercises might be helpful to apply
this to your local area.
Scenario 1: A child or young person with an EHC plan is
detained in custody
Scenario 2: A child or young person detained in custody
requests an EHC needs assessment / is brought to the LAs
attention
•Consider the different stages of what might happen in this
scenario
• Discuss ‘the points to consider’ – what do we know? What do we
need to find out?
Scenario 1:
A child or young person with an EHC plan is detained in custody
Stage 1: Making contact and sharing information
The YOT must inform the LA that the CYP is in custody. The EHC plan must be
shared with the establishment.
Points to consider:
• Do you have the contacts you need to enable this process to begin?
• How will the YOT inform the LA that the child/young person is in custody?
• What information will need to be shared between the YOT and the LA? And
how will the EHC plan be shared?
Stage 2: Arranging EHC provision in custody
The home LA has a duty to arrange appropriate special educational provision in
the EHC plan. NHS England has a duty to arrange appropriate healthcare
provision in the EHC plan.
Points to consider:
• Who needs to be involved in discussing and agreeing provision for a CYP with
an EHC plan? Practically how would this happen?
• How will the discussion be recorded and shared?
Scenario 1:
A child or young person with an EHC plan is detained in custody
Stage 3: keeping provision under review
Depending on the length of the child/young person’s sentence, the LA should use
the EHC plan to monitor the CYP’s progress towards their outcomes.
Points to consider:
• How should this be organised / convened?
• Will the education and health provider in the establishment monitor progress?
Can the LA use this information to support any of their monitoring while the
child or young person is in custody?
Stage 4: Reviewing the EHC plan on release
The LA must review the child/ young person’s EHC plan on release. The LA may
wish to review the EHC plan in preparation for the CYP’s release.
Points to consider:
• What needs to be in place so that LAs are prepared to review a CYP’s EHC plan
as soon as possible on their release and who would need to be involved?
Scenario 2:
A child or young person detained in custody requests an EHC
needs assessment / is brought to the LAs attention
Stage 1: Requesting an assessment
If a request is made for an EHC needs assessment or a CYP is brought to the LA’s
attention, the LA must consider an assessment. The decision to assess or not must
be taken within 6 weeks.
Points to consider:
• What evidence does the LA need to have to inform their decisions about an
assessment? If the LA has a panel to advise on your decision, would it need to
be used differently?
• How might the YOT be involved in this process?
Stage 2: Carrying out an EHC needs assessment
Points to consider:
What are the practical considerations for carrying out an EHC assessment in
custody? E.g. access / minimal disruption. How might the YOT and establishment
SENCO be able to help?
How will the home CCG contribute? (keeping in mind that they are not involved in
health in custody)
Scenario 2:
A child or young person detained in custody requests an EHC
needs assessment / is brought to the LAs attention
•Stage 3: Drawing up an EHC plan
The plan must focus on post detention needs and in preparing the plan the LA and
those contributing should follow the same principles and requirements for an EHC
plan in the community.
Points to consider:
•How will the plan be drawn up with the child, parent or young person’s
involvement?
•How will the home CCG be involved (bearing in mind that they are not involved in
health care in custody) and how will the EHC plan be agreed with the home CCG?
Stage 4: Issuing a final EHC plan
•The LA must send the finalised EHC plan to the child’s parent or the young
person, the person in charge of the establishment, the YOT, the education
institution named in the plan, the relevant CCG and NHS England.
•If the statutory process is completed and the CYP remains in custody the EHC
plan has the effect of a CYP entering custody with a plan (return to scenario 1)