NASUWT
Briefing
Children and Families Bill
Part 3: Children and Young People with Special Educational Needs
Part 6: Shared Parental Leave and Pay
Part 7: Time off work for ante-natal and adoption appointments
Part 8: Extension of the Right to Request Flexible Working
NASUWT briefing for Labour Members of Parliament
The briefing addresses the Children and Families Bill, Part 3, Children and Young
People with Special Educational Needs (clauses 19-76) and parts 6 to 8 (clauses 87 to
104). It summarises key clauses in the Bill and sets out the NASUWT’s position on the
proposals. The briefing also identifies key amendments that the NASUWT would like
made to the Bill.
The way in which children and young people’s needs are defined will influence how
different areas covered by the Bill are interpreted. In light of this, the briefing pays
particular attention to clause 20 of the Bill which covers the definition of special
educational needs (SEN). The NASUWT would also like to draw Ministers’ attention to
the comments that relate to clause 62 which covers special educational needs coordinators (SENCOs).
For further information, parliamentarians may contact:
Ms Chris Keates
General Secretary
chris.keates@mail.nasuwt.org.uk
www.nasuwt.org.uk
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Part 3: Children and Young People with Special Educational Needs
Clause 19: Local authority functions: supporting and involving children and
young people.
This clause says that a local authority must have regard to the views, wishes and
feelings of the child and his/her parents, engage the child and his/her parents in making
decisions and support them to help achieve the best possible educational and other
outcomes. This clause is intended to enable children, young people and their families to
participate in a fully informed way in decisions that relate to them.
NASUWT comment
The NASUWT supports this clause but is concerned that cuts to local authority budgets
mean that it will be extremely difficult for local authorities to fulfil this function in practice.
There is a danger either that children and young people and their families will receive a
very basic framework of support or that support will be targeted at very few children,
young people and their families.
Clause 20: When a child or young person has special educational needs.
This definition replicates the definition of SEN in the Education Act 1996 but extends the
definition from birth to 25. This defines a child or young person as having SEN if he or
she has a learning difficulty or disability which calls for special education provision to be
made for him or her. It also says that a child of compulsory school age or a young
person has a learning difficulty or disability if he or she has significantly greater difficulty
in learning than the majority of others of the same age, or has a disability which prevents
or hinders him or her from making use of facilities of a kind generally provided for others
of the same age in mainstream schools or mainstream post-16 institutions.
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NASUWT comment
The NASUWT has commissioned and published research that looks at interpretations of
SEN and inclusion.1 This research highlights that SEN and inclusion can be defined in a
number of ways. For example, inclusion may be seen as an ideology (usually linked to a
human rights agenda), a place (usually a mainstream school versus a special school), a
policy (normally from central or local government), a professional practice (such as
inclusive teaching), or a personal experience (such as how the pupil experiences
inclusion). The research also points to the confusion that can arise as a result of these
interpretations and emphasises the need for teachers to have a workable version of the
different terms and agendas. This indicates the need for a radical review of the definition
of SEN.
The NASUWT believes that all children and young people should have their needs met
so that they are able to achieve their potential. It is vital that a label of need does not
prevent them from receiving the help that they need. Therefore, the NASUWT believes
that the definition of SEN should be linked to and located within a wider definition of
‘additional needs’. Defining SEN in this way would support a holistic approach to
meeting needs. It would also provide the legal framework for ensuring that services such
as the health service can be held to account for meeting needs of children and young
people.
The NASUWT believes that the definition of need set out in the Bill should be amended
to define SEN within the broader definition of ‘additional needs’.
One of the reasons for the proposal in the pre-legislative scrutiny that the term SEN be
changed to ‘learning difficulties and disabilities’ was that SEN is a term associated with
school. It was suggested that the term SEN is not appropriate for young people between
the ages of 16 and 25 years of age. The NASUWT notes that the Bill does not address
this concern. Locating the definition of SEN within a broader definition of additional
1
Ellis, Simon; Tod, Janet; and Graham-Matheson, Lynne, (2008), Special Educational Needs and
Inclusion: Reflection and Renewal, NASUWT, Rednal; and Ellis, Simon; Tod, Janet; and GrahamMatheson, Lynne (2011), Reflection, Renewal and Reality: Teachers’ Experience of Special Educational
Needs and Inclusion, NASUWT, Rednal.
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needs would allow for other definitions of need to be added, including a definition that
more accurately reflects the needs of young people between the ages of 16 and 25.
Clause 21: SEN provision, health care provision and social care provision.
This clause sets out the definitions of SEN, health care provision and social care
provision. It explains that special educational provision means special educational and
training provision and that health care provision refers to all forms of health care
services.
NASUWT comment
This clause appears to extend the scope of what could be considered SEN provision.
However, other clauses in the Bill fail to recognise this breadth. For example, Clause 42
of the Bill (which refers to the duty on the local authority to secure provision in
accordance with the Education Health and Care (EHC) Plan only refers to securing
special educational provision. Clause 42 and other clauses in the Bill need to be
amended to reflect the broader interpretation of provision.
Specific issues that relate to the proposed function of the EHC Plan as the replacement
for a Statement of SEN are considered elsewhere in this briefing.
Clause 22: Identifying children and young people with SEN.
This clause states that it is a function of the local authority to identify all children and
young people in its area who have or may have SEN.
NASUWT comment
This function is vital as it is the means for ensuring that every child can access and
receive an appropriate education. However, questions must be raised as to whether
local authorities will be able to fulfil this function. Specifically, the fragmentation of the
education system, including the increasing number of free schools and academies that
are independent of the local authority, changes to the funding arrangements, and the
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extent of cuts to local authority services means that local authorities will encounter
serious difficulties in trying to fulfil the responsibility.
Clause 23: When a local authority is responsible for a child or young person.
This states that a local authority is responsible for a child or young person who is in the
local authority area and has been identified by the local authority or somebody else as
having SEN or as possibly having SEN.
NASUWT comment
There may be issues establishing who is responsible for some groups of children and
young people. In particular, children and young people who are mobile, such as some
Gypsy Roma and Traveller (GRT) children, and children and young people who have
recently arrived in the country, including refugees or asylum seekers, may be at risk of
being overlooked or remaining outside the system. It will be important that the legislation
makes specific reference to who is responsible for identifying and meeting the needs of
such children and young people with SEN.
Clause 25: Promoting integration.
This requires the local authority to carry out its functions in a way that ensures the
integration of SEN provision with health care provision and social care provision where it
thinks that this would promote the wellbeing of children and young people in the area
who have SEN.
NASUWT comment
It is essential that services work together to ensure that provision is integrated and a
child or young person can access the services that they need easily and promptly. The
NASUWT is extremely concerned that the responsibility for ensuring integration rests
with the local authority. The Union believes that this must be a shared responsibility and
that health services and social care services should have the same duty placed on them.
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Feedback from teachers and school leaders to the NASUWT indicates that many of the
frameworks that supported inter-agency working under the Every Child Matters (ECM)
agenda have disappeared and that schools are encountering significant difficulties in
identifying and accessing appropriate provision. Simply placing a duty on the local
authority (and possibly other key players such as an NHS Trust) is not sufficient. Steps
must be taken to ensure that services have the funding and resources to support
integrated working. The task is immense. For example, feedback from special
educational needs co-ordinators (SENCOs) and other teachers and school leaders who
were involved in inter-agency work as part of ECM indicates that difficulties arose
because of differences in organisational/sector cultures, sector priorities and even in
language and terminology. Further, feedback from SENCOs and other teachers working
to support pupils with SEN indicates that there are significant difficulties in some areas.
For example, health and care services are not attending meetings and are failing to
allocate resources for ‘education-related’ needs.
Clause 26: Joint commissioning arrangements.
This clause requires the local authority and local clinical commissioning groups to work
in partnerships and make arrangements for commissioning SEN provision, healthcare
provision and social care provision for children and young people with SEN. Joint
commissioning arrangements must include arrangements for considering and agreeing
the EHC provision reasonably required, what should be secured and by whom, and the
advice and information to be provided about that provision. They must include the
particular arrangements for securing EHC needs assessments and plans and for
agreeing personal budgets.
NASUWT comment
There is a danger that financial considerations will influence local authority and health
service judgements about what is reasonably required. This could mean that a child or
young person’s needs are not met, something that will impact adversely on the
child/young person but also on the school/institutions that they attend. This is likely to
affect the education of other pupils/students at the school/institution and will almost
certainly place considerable pressure on teachers and other staff. Therefore, it is vital
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that a child or young person’s needs are identified appropriately, appropriate provision is
put in place to meet those needs, and provision is properly resourced. Regulations
supporting the legislation will need to address these points.
The NASUWT believes that there is a particular risk for schools arising from joint
commissioning and collaboration. Evidence from teachers and school leaders about
reforms linked to the ECM agenda indicates that other agencies were placing clear
expectations on schools and SENCOs, in particular, to co-ordinate meetings and to take
on the role of lead professional. This placed considerable workload burdens on the
teachers concerned and had significant cost implications for schools. However, in the
absence of the clear framework for inter-agency working, established as part of the ECM
agenda, there is a risk that the pressures on teachers and school leaders will deepen
and become more widespread. It is essential that the Children and Families Bill does not
exacerbate these concerns. Legislation and related regulations, along with guidance,
must provide a clear message that schools, while working closely with other agencies,
should focus on their core education responsibilities.
Clause 27: Duty to keep education and care provision under review.
This clause requires the local authority to keep SEN provision and social care provision
for children and young people under review. This includes provision in its area and
provision made outside the area for children and young people for whom the local
authority is responsible. In carrying out the function, the local authority is required to
consult a range of individuals, groups and organisations in the area. This includes
children and young people with SEN and their parents, governing bodies of maintained
schools and proprietors of academies, post-16 institutions, children’s centres and early
year education providers in the area, as well as other people and organisations that the
local authority thinks appropriate.
NASUWT comment
It is important that an organisation has specific responsibility for keeping education and
care provision under review. However, the Bill also needs to set out explicitly who is
responsible for individual children and young people who could ‘fall through the net’
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because they move frequently. This includes young people in the youth justice system
and children and young people from mobile GRT families. It is also important to note that
some of these children and young people may not have an EHC Plan, meaning that
individual schools and institutions will be expected to take responsibility for meeting their
needs. This poses a serious risk that local authorities will not identify and take account
of their needs. The issue is compounded by the fact that many local authorities have cut
services. In the case of GRT children and young people, many of the specialist services
that enable local authorities to provide support to children and young people who are
mobile have closed.
Clause 30: Local offer for children and young people with SEN.
This clause requires the local authority to publish information about the SEN provision it
expects to be available in its area and the Local Offer: the education, health and care
provision, and the training provision that is available in the area. The clause requires the
local authority to keep the Local Offer under review. The clause also says that
regulations may be introduced to place further requirements on local authorities. These
may cover requirements relating to information included in the local authority’s Local
Offer, who is consulted, how children and young people and their families are involved,
how to obtain an EHC needs assessment, and how to make a complaint.
NASUWT comment
Local authorities will be unable to fulfil this requirement unless they are adequately
resourced. Further, the Coalition Government’s education policy reforms have created a
fragmented education system which places responsibility for decisions about funding, for
example, with individual academy schools and with parents. The Local Offer will only
work if the various players within the local system co-operate and work to a common
vision. This means that local authorities will need to invest a considerable amount of
time and effort into encouraging schools and others to contribute to the development of
the local vision and buy into that vision. This has massive implications for the allocation
of already scarce local authority resources.
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The clause allows for regulations to be introduced that set out the information to be
included in a local authority’s Local Offer. The NASUWT believes that the clause should
be strengthened to state that regulations shall be introduced that set out what
information will be included in the Local Offer.
The current regulations, Special Educational Needs (Provision of Information by Local
Education Authorities) (England) Regulations 2001, set out information that will be useful
to include in regulations that relate to the Local Offer. The regulations also establish
some important principles that underpin provision for pupils with SEN, including the need
to identify and promote good practice, the importance of collaboration, the need for
teachers and other staff in schools to access professional development and support, and
the need for a strategic approach to SEN provision locally. The NASUWT believes that
regulations relating to the Local Offer should build on these principles.
Clause 31: Co-operating in specific cases: local authority functions.
This clause requires listed bodies to co-operate with a local authority that has requested
co-operation unless co-operating would be incompatible with its own duties or otherwise
have an adverse effect on the exercise of its functions. The bodies listed are: another
local authority, a youth offending team, the NHS Commissioning Board, a clinical
commissioning group, a Local Health Board, and an NHS Trust or NHS Foundation
Trust. The clause says that a body under duty to comply must comply unless a
prescribed exception applies.
NASUWT comment
The NASUWT is extremely concerned that cuts to budgets and services will mean that
organisations may not comply with the duty to co-operate with the local authority. While
the Union notes that funding cannot be a primary reason for refusing to co-operate, it is
likely to have a significant impact on practice and will be difficult to challenge. For
example, many organisations have had to pare back services to an absolute minimum
,meaning that any request for support is likely to have an impact on how other services
are delivered.
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The NASUWT is concerned that that the clause effectively places the responsibility for
meeting a child or young person’s needs solely on the local authority. The clause does
not address many of the problems associated with co-operation that teachers and
school leaders have reported to the NASUWT. For example, SENCOs report that there
are very different cultures in the education and health services. This includes differences
in communication, in the use of language and terminology and in organisation priorities,
policies and procedures.
Clause 33: Children and young people with an EHC Plan.
This clause says that where a local authority is securing an EHC Plan for a child or
young person, the local authority must secure that the child or young person is educated
in a maintained nursery school, mainstream school or mainstream post-16 institution,
unless it is incompatible with the wishes of the child’s parent or the young person, or the
provision of efficient education for others. The clause says that the local authority and
the governing body, proprietor or principal of a mainstream school or post-16 college
may rely on incompatibility with mainstream education only if it can show that there were
no reasonable steps that could be taken to prevent the incompatibility.
NASUWT comment
The clause retains the presumption of mainstream education that is part of existing
legislation. The NASUWT supports the presumption of mainstream education in principle
but emphasises that there are significant issues about how this operates in practice.
These difficulties are compounded by cuts to services and will be exacerbated further by
changes to school funding. The issue is complex, which means that addressing the
problems will be equally complex. For example, a local authority’s approach to inclusion
will have a significant impact on the nature of SEN provision in the authority. In some
authorities, all but those children and young people with the most severe and complex
needs will be educated in mainstream schools. In other local authorities, there will be a
range of specialist provision, including special units attached to mainstream schools and
special schools. Further, SENCOs working in mainstream schools report to the
NASUWT that they are experiencing significant difficulties in accessing specialist
support for pupils with SEN, including pupils with statements. This affects pupils and
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teachers across the school, not just those pupils with SEN. The NASUWT believes that
there is a need for a deep and open examination of the issue. It is essential that
provision for pupils with SEN is properly funded and resourced, and the Bill should
address this issue.
Clause 34: Children and young people with SEN but no EHC Plan.
This clause requires a child or young person who does not have an EHC Plan to be
educated in a mainstream school or post-16 college unless the child is awaiting an EHC
assessment, which is likely to result in them being placed in a special school. The clause
also allows for special schools or special post-16 institutions with academy status to
admit children and young people with SEN but no EHC Plan, if the academy
arrangements permit such an arrangement.
NASUWT comment
The plan to allow special academies and post-16 special academies to admit pupils
without an EHC Plan is extremely problematic. The creation of a market for pupils with
SEN may mean that such academies seek to admit pupils and students with needs that
will be more appropriately met in other provision. Further, it makes the local authority’s
role of planning provision for pupils with SEN, including provision for children and young
people with an EHC Plan, extremely difficult. The NASUWT believes that the clause
should be amended and that special academies should not be able to admit children and
young people without an EHC Plan.
Clause 35: Children with SEN in maintained nurseries and mainstream schools.
This clause requires those concerned with making educational provision for a child with
SEN who is educated in a mainstream school or nursery school to ensure that the child
engages in the activities of the school with children who do not have SEN. The clause
applies only as far as is reasonably practicable and as long as this is compatible with the
child’s SEN, the efficient education of other children in the school and the efficient use of
resources.
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NASUWT comment
The fact that the clause includes conditions where the provision need not apply means
that there is scope for interpretation. In the current context of cuts to services and school
budgets, there is a risk that the exemption will be applied by many schools. It will be
critical to monitor how well schools are able to engage pupils with SEN in activities with
children who do not have SEN and across the life of the school. Action should be taken
to address any issues identified. This might include increasing funding and resources to
schools and/or amending legislation.
Clause 36: Assessment of education, health and care needs.
This clause gives a child’s parent or a person acting on behalf of the school or post-16
institution to request a statutory assessment. The local authority must consult the child’s
parent or the young person. It is for the local authority to determine whether it is
necessary to carry out an assessment. The child’s parents or the young person must be
notified if the local authority decides that an assessment is not necessary. This
represents a change from current arrangements in which there is no formal right for
individuals or non-local authority organisations to request an assessment.
If the local authority thinks that the child or young person may need special educational
provision to be made through an EHC Plan then it must carry out an assessment.
Details about how the assessment should be carried out will be set out in regulations.
NASUWT comment
This clause allows the local authority to decide that an assessment is not necessary
even if a parent or a school requests an assessment. Combined with substantial cuts to
local authority budgets and services, there is a real danger that this power could be used
to limit the number of children and young people who are assessed for an EHC Plan.
Feedback from schools in SEN pathfinder areas suggests that the EHC assessment
process is complex and could only ever work if the number of children and young people
receiving an EHC Plan is smaller than the number that currently receive a Statement of
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SEN. The NASUWT is extremely concerned that this will mean that local authorities
seek to reduce the number of assessments that are carried out.
Clause 37: Education, health and care plans.
This clause sets out what a local authority must do if an EHC assessment indicates that
a child or young person up to the age of 25 requires an EHC Plan for their special
educational provision. This includes any health care and social care provision that is
prescribed. The Plan must also set out the outcomes that are intended. The local
authority has a duty to prepare and implement the Plan.
NASUWT comment
This clause says that a local authority must have regard to the age of a young person
who is over the age of 18. There is an implication that young people who are closer to
the age of 25 may not be given an EHC Plan. The NASUWT is concerned that this could
mean that young people between the ages of 19 and 25 do not get the support that they
need. It is vital that all children and young people who have SEN have access to
appropriate support, including education and training support, to prepare them as fully
as possible for life beyond school or college.
Clause 39: finalising EHC Plans – request for particular school or other
institutions.
This clause applies when a child’s parent or young person requests that a particular
school or institution be named in an EHC Plan. In this instance, the local authority must
consult the governing body, proprietor or principal of the school or institution. The local
authority must comply with the parent or young person’s request unless the child or
young person’s attendance at the school would not meet their educational needs or
would be incompatible with the efficient education of others or the efficient use of
resources.
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NASUWT comment
The NASUWT welcomes the decision to require academies to comply with the
legislation. The recent legal case involving Mossbourne Academy illustrates how an
academy may refuse to admit a child with SEN. It will be important to monitor the
implementation of this clause to ensure that academies are fulfilling their responsibilities.
Linked to the previous point, it is important to be alert to the practice adopted by some
schools of discouraging parents of a child who may be considered ‘undesirable’ from
applying to a school. The NASUWT regularly receives feedback from teachers indicating
that some schools tell prospective parents that they would be unable to meet the needs
of their child and that the ‘school down the road’ would be far more suitable. This is not
specifically an issue for pupils with SEN, but the practice appears to be having a
disproportionate impact on this group.
Clause 41: Independent special schools and special post-16 institutions:
approval.
The Secretary of State has the power to approve independent special schools and post16 institutions which means that they can then be named in an EHC Plan. Approval can
only be given if the institution consents and the Secretary of State can withdraw
approval. Further, regulations may set out which institutions can be approved and the
criteria that must be met for approval.
NASUWT comment
The NASUWT has concerns about the proposal to allow independent special schools
and institutions to be named in an EHC Plan. Some independent schools and institutions
charge extremely large fees and this could encourage or increase the practice. At a time
when local authority budgets are being slashed, local authorities cannot afford to meet
these costs. Further, if local authorities are forced to cover the costs then other services
are likely to be lost.
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Clause 43: schools and other institutions named in the EHC Plan – duty to admit.
This clause makes it clear that a maintained school, nursery school, academy, further
education institution, non-maintained special school or independent specialist college
approved by the Secretary of State must admit a child or young person if it is named in
an EHC Plan.
NASUWT comment
It is important to note the concern about the practice adopted by some schools and
colleges and referred to earlier in this briefing. The NASUWT often receives feedback
from SENCOs and from teachers and school leaders in inclusive schools that indicates
that other schools are discouraging parents of ‘difficult’ children by suggesting that their
child will not have their needs properly met if they were to attend the school and that the
school ‘down the road’ would be much more suitable. This is not an issue that will be
addressed through legislation and regulation alone, although arrangements to monitor
and, if necessary, intervene to address schools’ practices in this respect could be
established on a statutory basis.
Clause 45: Ceasing to maintain an EHC Plan.
A local authority may only stop maintaining an EHC Plan if they are no longer
responsible for the child or young person, or if they consider it no longer necessary for
the EHC Plan to be maintained.
NASUWT comment
This gives the local authority a large degree of autonomy. Also, NASUWT research into
interpretations of SEN and inclusion2 highlights that local authorities have very different
interpretations of inclusion and that this leads to very different policies and practices,
including significant differences in how and where needs are met. There is a distinct
danger that this flexibility, combined with the substantial financial pressures that local
authorities face, will lead to some local authorities deciding that it is no longer necessary
2
Ellis, S.; Tod, J.; and Graham-Matheson, L. (2008) Special Educational Needs and Inclusion: Reflection
and Renewal.
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for some EHC Plans to be maintained. It should also be noted that, at present, the
Government has no effective means of monitoring local authority practices in this regard.
Clause 46: Maintaining an EHC Plan after a young person’s 25th birthday.
This allows a local authority to maintain an EHC Plan until the end of the academic year
when the young person is 25.
NASUWT comment
The amendment is welcome as this will help to improve the coherence of provision,
particularly coherence through transition post-16. However, the NASUWT is concerned
that funding constraints and cuts to services will mean that, in many instances, local
authorities will opt to not continue an EHC Plan.
Clause 47: release of a child or young person for whom an EHC Plan was
previously maintained.
This clause applies when a child or young person is released from a custodial sentence.
If the child or young person previously had an EHC Plan then a local authority, which
may be a different local authority, must maintain the previous EHC Plan. They must also
review the plan as soon as is practicable after the child or young person’s release.
Regulations will set out the circumstances when it will not be necessary to review an
EHC Plan.
NASUWT comment
It is vital that steps are taken to ensure that children and young people in the criminal
justice system receive appropriate support while they are in custody. It is also essential
that there is continuity of support. The NASUWT is extremely concerned that this does
not happen at the moment. If a child or young person does not receive appropriate,
consistent and coherent support when they are in custody, they are likely to have
regressed and they are more likely to drop out of education. The NASUWT believes that
this is a moral issue that should be given much greater priority by the government.
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However, not addressing the issue is also likely to cost society much more in the long
term. While it may not be possible to address this issue through regulation and
legislation, the Bill provides an opportunity for Parliament to reflect on the sufficiency of
current provision in this regard, and to consider ways in which provision in this critical
area can be enhanced further.
Clause 48: Personal budgets.
This clause requires a local authority that maintains or is preparing an EHC Plan for a
child or young person to prepare a personal budget if the parent or young person
requests one. This identifies the amount of money available to secure particular
provision, specified or proposed to be specified, in the EHC Plan. Regulations will
provide details about personal budgets, including provision that may be included in a
personal budget, the provision of information, support and advice in connection with
personal budgets and direct payments, and when, to whom and on what conditions
direct payments may or may not be made.
NASUWT comment
The NASUWT is opposed to the plan to allow parents and young people to have a
personal budget if they want one. While the Union supports the wish to ensure that
parents and young people have much greater involvement in discussions and decisions
about their child or their child’s SEN provision, decisions about what provision and
support is provided to individuals must form part of a planned, coherent range of
provision. The introduction of personal budgets and the focus on individual choice will
undermine local authorities’ ability to plan strategically and ensure a coherent range of
provision to meet the needs of all children and young people with SEN. It will also lead
to an increasingly fragmented system of provision.
The current wording of the clause means that parents will have a statutory right to
require a local authority to prepare a personal budget and make direct payments even
where this would not be justified in terms of efficiency and economy of scale. There is
also a possibility that the personal budget could be used to pay for provision which is
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inappropriate to a child’s needs or where the child’s needs might be better met in some
other way.
The NASUWT is extremely concerned that the personal budget could be used to pay for
a school or college place or to directly employ somebody to work with the child at
school. This would create significant problems for schools, including issues about how
that person is managed and how they work with the child in the classroom. For example,
the parent may insist that the person only works with their child. The teacher may
believe that it is more appropriate for the person to support other pupils so that they, as
teacher, can spend time with the child in order to meet their particular learning needs.
Better-off parents may seek to supplement money in the Personal Budget with their own
money in order to secure particular support or provision for their child. This would be
extremely dangerous. It creates the possibility that some services will only be available
to parents who have the means to pay for them. It could also mean that future policies
start from the assumption that some parents will need to pay for services.
The NASUWT believes that the clause should be removed from the Bill.
Clause 51: Mediation.
This clause applies in relation to a decision of a local authority or the content of an EHC
Plan maintained by a local authority. It does not apply in respect of an appeal
concerning the school or institution named in an EHC Plan, the type of school or
institution specified in the plan, or the fact that an EHC Plan does not name a school or
institution.
In respect of a decision of a local authority or the content of an EHC Plan maintained by
a local authority, a parent or young person can only appeal after mediation has been
considered and a mediation certificate has been issued. It is for the parent or young
person to decide whether they will proceed with mediation.
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NASUWT comment
The NASUWT supports the intention to encourage parents and young people to
consider mediation rather than taking an appeal straight to a First-Tier Tribunal.
However, the Union believes that parents and young people should not be forced to
participate in mediation and therefore welcomes the change which means that a parent
or young person must be given information about mediation but does not have to
participate in mediation before making an appeal to the First-Tier Tribunal.
Clause 55: Equality Act 2010: claims against schools by disabled young people.
This clause amends the Equality Act 2010 so that young people who are over
compulsory age and in school can make a disability discrimination claim to the First-Tier
Tribunal.
NASUWT comment
The NASUWT welcomes the amendment. This brings legislation into line with the
principles of the United Nations Convention on the Rights of the Child.
Clause 56: Special educational provision otherwise than in schools, post-16
institutions etc.
This clause enables the local authority to arrange special educational provision outside
of a school, college or provider of early years education. The local authority must be
satisfied that it would be inappropriate for the child or young person to receive education
in one of these settings and have consulted the parent or young person.
This provision could include provision that is not part of the free entitlement to early
years education.
NASUWT comment
It will be essential to ensure that any special educational provision provided is high
quality, that it meets the child or young person’s educational needs and helps them to
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achieve their potential. The clause needs to be strengthened so that there is a clear
reference to the local authority ensuring that provision is high quality and will meet their
educational needs.
Clause 57: Special educational provision outside England and Wales.
This clause enables local authorities to arrange provision for a child with an EHC Plan
outside England and Wales that specialises in SEN and gives them the power to pay for
this provision.
NASUWT comment
The quality and appropriateness of the provision should determine whether this power
can be exercised. It will also be vital to ensure that any decision to place a child or
young person in provision outside of England and Wales does not have a detrimental
impact on the child and their family.
Clause 58: Fees for special educational provision at non-maintained schools and
post-16 institutions.
This clause states that the local authority must pay the fees in respect of education and
training provided for a child or young person at the school, institution or place named in
the EHC Plan. Where there is no EHC Plan, the local authority must be satisfied that the
child or young person requires special educational provision and that it is appropriate for
them to receive the education at the institution in question. The local authority must also
pay the fees for board and lodging if the local authority is satisfied that special provision
cannot be made unless board and lodging are provided.
NASUWT comment
This clause covers a number of issues that the NASUWT considers to be problematic.
This includes the plan to allow special academies to admit pupils who do not have an
EHC Plan. The policy means that the interests of the school or business may be placed
above the needs and interests of the child. While the clause states that a local authority
must be satisfied that it is appropriate for the child to receive education at the institution
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in question; this is very general and does not ensure that the child must receive highquality education.
Potentially there are significant issues about the cost of specialist provision. The
NASUWT has received feedback from teachers and headteachers that some
independent special schools charge extremely high fees. The clause means that a local
authority could be forced to pay these fees, including board and lodgings, if the child’s
parent or young person requests that the school is named in the EHC Plan. This could
have significant implications for the local authority’s ability to meet the needs of other
children and young people with SEN.
As indicated earlier, the NASUWT also has concerns about the potential use of Personal
Budgets to pay for a school or institution place. While a Personal Budget may place a
cap on very high cost provision, it would allow for the possibility that a child or young
person is placed in provision other than a school, college or early years setting that does
not provide high-quality education.
Clause 60: Access to schools, post-16 institutions and other institutions.
For the purposes of monitoring, the clause gives local authorities the right to have
access at any reasonable time to the premises of a school or other institution in England
which is providing training to a child or young person with an EHC Plan maintained by
the local authority. Local authorities will have access to schools and special post-16
schools in Wales, but not to FE institutions in Wales.
NASUWT comment
While it is vital that local authorities have access to schools and other institutions to
monitor the quality of education and training, it is also important to ensure that local
authorities do not introduce bureaucratic, burdensome and unnecessary systems to
support their monitoring of the quality of education and training. Evidence from teachers
and headteachers indicates that some local authorities have created extremely
bureaucratic and burdensome systems of monitoring. This may not be an issue for
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legislation, but it is something that needs to be noted and that should be addressed
through guidance.
Clause 61: Using best endeavours to secure special educational provision.
This requires the governing body, proprietors or management committees to use their
best endeavours to secure that the special educational provision called for by a child or
young person’s SEN is made. The clause applies to provision in schools, academies,
16-19 academies, FE institutions and pupil referral units (PRUs).
NASUWT comment
This clause sets a positive intention and this is welcome. However, a school or
institution’s ability to secure the special educational provision for a child will depend on a
range of factors, including funding and access to resources, including support. Cuts to
local authority services, including services to support pupils with SEN, and budget cuts
mean that governing bodies, proprietors and management committees are likely to find it
increasingly difficult to fulfil this responsibility. There is a need to ensure that schools
and colleges are appropriately resourced and funded.
Clause 62: Special Educational Needs Co-ordinators.
This clause requires the governing bodies of mainstream schools, academy schools and
maintained nursery schools to ensure that there is a member of staff designated as a
SENCO. The clause gives the Secretary of State power to make regulations requiring
governing bodies and proprietors to ensure that SENCOs have prescribed qualifications
and/or experience and confer other functions on them in relation to the role.
NASUWT comment
Current legislation requires that a SENCO must be a qualified teacher. It is essential that
this requirement is retained and set out in legislation. The clause should be amended to
make it clear that a SENCO working in any setting including a maintained school, nonmaintained school or academy must be a qualified teacher.
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SENCOs play a key role in supporting other teachers within the school or institution,
including providing advice on pedagogy. These are responsibilities that can only be
undertaken effectively by a qualified teacher.
The SENCO needs to hold a position of authority within the school. The SENCO needs
to be able to influence decisions about teaching and learning made by individual
teachers and by departments. Further, they need to be able advise on approaches to
planning and assessment, and influence strategic decisions about planning and
assessment, including the use of strategic approaches such as provision mapping.
Large schools are likely to employ a team of SEN specialists, so SENCOs in these
schools will manage a team. These are tasks that require the professional knowledge
and expertise of a qualified teacher.
The term ‘member of staff’ used in the clause should be replaced by ‘qualified teacher’.
It is essential that every SENCO is appropriately trained and that they have access to
ongoing professional development. The NASUWT believes that it is right that this should
be covered by regulations. However, some SENCOs experience significant problems in
accessing professional development and support, particularly specialist continuing
professional development (CPD) and support outside of the school or institution.
Legislation and regulations need to make it clear that schools and other institutions must
ensure that SENCOs are able to undertake CPD and access professional networks of
support, and schools and other institutions provide time within the working day for
SENCOs to undertake training and CPD and cover the costs of this training and
development.
Clause 63: Informing parents and young people.
This clause applies when a child or young person does not have an EHC Plan. It
requires the governing bodies of maintained schools, maintained nursery schools,
proprietors of academy schools and Alternative Provision Academies and the
management committees of pupil referral units (PRUs) to tell a child’s parent or the
young person what special educational provision is being made for the child or young
person.
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NASUWT comment
The plan to create a single category of SEN for those children and young people who do
not have an EHC Plan raises some significant concerns for the NASUWT. This policy
change is being introduced alongside claims that schools are identifying too many
children and young people as having SEN. Further, cuts to services mean that schools
are unable to access support to meet the needs both of pupils with SEN and pupils
without SEN who would benefit from specialist interventions and support. This is a
matter that needs to be addressed at national level.
Clause 64: Special educational needs information report.
This clause requires the governing bodies of maintained schools and nursery schools
and the proprietors of academy schools to prepare a report containing information about
SEN. This includes information about the arrangements for admission of disabled pupils,
the steps taken to prevent less favourable treatment of disabled pupils, the facilities
provided to assist disabled pupils, and the accessibility plan which schools must publish
under the Equality Act 2010. The information to be provided will be set out in
regulations.
NASUWT comment
It is essential that schools and other institutions take their responsibilities in relation to
equalities legislation seriously. Schools, colleges and other providers should be
proactive in tackling and preventing all forms of discrimination and should promote good
equality practice. However, the NASUWT is concerned that cuts to services, especially
services that are targeted at meeting the needs of different groups, such as children and
young people with disabilities, along with policy changes that have resulted in less
emphasis being placed on equality matters, mean that schools are not addressing key
equality issues. In light of the importance of this element of the Bill, it is essential that
provisions in respect of the information report are set out in primary legislation rather
than through regulations.
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It is vital that the Accessibility Plan is a strategic document. For example, it should form
part of and shape the school’s School Improvement Plan. It should also lead to positive
outcomes for children and young people with disabilities. There is a need to monitor the
impact and effectiveness of school Accessibility Plans and to identify what steps can be
taken nationally to support more effective use of the Plans.
Clause 65: provision and the publication of SEN information.
This clause places a duty on the Secretary of State to exercise his information-gathering
powers to secure SEN information about children and young people under the age of 19
from schools and local authorities. The duty also requires the Secretary of State to
publish the information annually. The information should include the provision that would
be likely to help improve the wellbeing of children and young people with SEN.
NASUWT Comment
It is essential that the Department for Education (DfE) collects, analyses and shares
information about the educational experiences of children and young people with SEN,
including information about access to education, attainment and progress, and matters
related to their welfare and wellbeing, including experiences of harassment, bullying and
discrimination. The Secretary of State’s report should inform and influence national
education policy decisions. This includes policy decisions that relate to children and
young people with SEN specifically, but also education policy more generally.
Clause 66: Code of Practice.
This clause requires the Secretary of State to issue a code of practice giving guidance to
the governing bodies/proprietors/management committees of schools, academies, early
years providers, FE institutions and other institutions covered by the legislation on how
to carry out their functions.
The First-Tier Tribunal must take account of the code when it considers questions
arising from the SEN appeal.
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NASUWT comment
The Code of Practice plays a critical role in shaping SEN policy and practice in schools
and other institutions. Therefore, it is vital that teachers, particularly SENCOs and school
leaders, are actively engaged in discussions about the content of the revised Code. It
will be important for the Code to draw on evidence about what works well and address
the issues and challenges that schools and institutions may face.
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Parts 6 to 8: Parental leave and pay, time off for antenatal care, and
flexible working
Part 6: Shared Parental Leave and Pay
Clause 87: Shared parental leave.
This amends the Employment Rights Act (ERA) 1996 to enable regulations to be
introduced entitling birth parents and adopters to shared parental leave. This will enable
a mother entitled to maternity leave or a primary adopter entitled to adoption leave to
bring their 52 weeks of maternity or adoption leave to an end early and convert the
remainder to shared parental leave which either they or the father/their partner can take.
Clause 95 repeals the existing additional paternity leave and pay scheme which enables
a mother or primary adopter to transfer up to 26 weeks of leave to the father/their
partner from 20 weeks after birth.
Clause 89: Statutory parental pay.
This clause amends the Social Security Contributions and Benefits Act (SSCBA) 1992 to
enable regulations to be introduced for the creation of shared parental pay. This means
if a mother or primary adopter converts any of their paid period of maternity leave or
adoption leave (the first 39 weeks) to shared parental leave then they or the father/their
partner will be entitled to shared parental pay for the remainder of that period.
NASUWT Comment
While the NASUWT welcomes the principle behind these changes to encourage more
equal parenting roles, a number of drawbacks mean that the changes will probably not
lead to a substantial change in the number of men taking time off work. Evidence
highlights the importance of promoting the take-up of reserved leave by fathers. There is
no good policy reason for delaying action until the proposed 2018 review. Therefore, the
NASUWT recommends that reserved leave for fathers should be introduced as part of
the Shared Parental Leave reforms in 2014.
The Government is proposing to restrict the right to return to the same job to an initial
block of 26 weeks or less. Any subsequent blocks of leave, irrespective of duration, will
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weaken right of return (to same job or, if not reasonably practicable, a similar job). The
practical implications of this change are significant. Mothers have often been given a
‘similar’ job which involves a substantial drop in responsibility and status, or which is in a
different location, often sufficiently far away that women are unable to manage childcare
and work. The NASUWT believes that all those taking Shared Parental Leave of 26
weeks or more should retain the right to return to the same job.
The NASUWT is concerned that the Government’s proposals for differential eligibility
criteria will significantly increase the complexity of leave arrangements for both
employers and parents. Shared Parental Leave and Paternity Leave should be made a
‘day one’ right (entitlement from the first day of employment).
There is still no access to leave for other carers supporting a mother. In some
circumstances it may be beneficial for a mother to be able to transfer some of her
maternity leave to someone other than a partner. For example increasing grandparents
are becoming joint carers of their grandchildren. Grandparents or other kinship carers
could assist if they had access to some leave and pay. The NASUWT believes that the
Bill should be amended so that a mother can transfer some her maternity leave to other
carers.
Following the introduction of Shared Parental Leave, women will be able to share leave
with the father or partner from two weeks after the birth. This will increase the number of
women who will consider returning to work while breastfeeding. There is no statutory
right to breastfeed on return to work. This will force many parents to choose between
breastfeeding and sharing leave. The bill should be amended to provide for a statutory
right to breastfeed on return to work which includes both the right to breastfeeding
breaks and to appropriate facilities.
Clause 91: Statutory rights to leave and pay of prospective adopters with whom
looked after children are placed.
This amends ERA 1996 and SSCBA 1992 to provide statutory rights to leave and pay
for those who are prospective adopters through the ‘fostering to adopt’ and ‘concurrent
planning’ placements.
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Clause 92: Statutory rights to leave and pay of applicants for parental orders
This clause amends existing statutory rights to enable employees intending to become
parents through surrogacy to access adoption leave and pay and ordinary paternity
leave and pay for the first time. They will also be eligible for shared parental leave and
pay.
Clause 94: Rate of statutory adoption pay.
This clause amends the SSCBA 1992 so that the first six weeks of Statutory Adoption
Pay (SAP) are paid at 90% of a person’s normal weekly earnings, which makes SAP
equivalent to Statutory Maternity Pay. At present, the whole SAP period is paid at the
low flat-rate of £135.43 a week.
NASUWT comment
The NASUWT welcomes all these changes.
Part 7: Time off work for ante-natal and adoption appointments
Clause 97: Time off work to accompany to ante-natal appointments
A pregnant woman’s husband, civil partner or partner will have the right to take unpaid
time off to attend two appointments, as will the father or parent of a pregnant woman’s
child and intended parents in a surrogacy situation.
The right to time off is for a
maximum period of six and half hours per appointment and is also given to agency
workers.
Clause 98: Time off work to attend adoption appointments.
This clause introduces a right to paid time off for an employee or a qualifying agency
worker who is a single adopter or the primary adopter in a couple to attend up to five
adoption appointments of no longer than six and a half hours each. A partner would only
be entitled to unpaid time off to attend up to two adoption appointments of six and a half
hours each.
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NASUWT comment
The NASUWT is concerned about the limits set out in the Bill. While many fathers will
only attend the major scans undertaken during standard antenatal care, some fathers
may want to attend more appointments. This is particularly likely to be the case where
the mother is unwell or where there is some uncertainty about the health of the baby.
The NASUWT believes that the clause should be amended so that fathers are given
paid leave to attend antenatal appointments and that there should be no restriction on
the number of antenatal appointments that they can attend.
In order to qualify for the right to time off, an agency worker must meet the qualifying
period for equal treatment under the Agency Worker Regulations 2010. This means they
have to have been employed by the same hirer in the same role for at least 12 weeks.
Similarly, at present, a pregnant agency worker does not have a right to paid time off for
ante-natal care unless she meets the qualifying period (s.57ZD of ERA 1996). For
pregnant employees this is a ‘day one’ right and for employed partners the right to time
off will be a ‘day one’ right. Good ante-natal care is essential for the health and wellbeing of mother and baby and it is preferable for fathers and partners to be involved.
Therefore, the NASUWT believes that the right to time off should be a ‘day one’ right for
agency workers as well as employees.
Part 8: Extension of the Right to Request Flexible Working
Clause 101: Removal of the requirement to be a carer.
This clause removes the requirement that an employee must be a parent or carer to
have a statutory right to request flexible working. This means that all employees with
more than 26 weeks’ service will be eligible.
Clause 102: Dealing with applicants.
This clause repeals the statutory procedure for dealing with a flexible working request
and replaces it with a requirement that an employer must deal with a request in a
‘reasonable manner’ and within three months.
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NASUWT comment
The NASUWT believes that the 26-week qualifying period for the right to request flexible
working should be removed. Many parents and carers, particularly lone parents, find it
hard to gain employment because so few jobs are advertised on a part-time or flexible
basis from day one. Therefore, the Bill should be amended to enable parents and carers
to request part-time and flexible working from day one.
The Advisory Conciliation and Arbitration Service (ACAS) has been working on a
statutory Code of Practice to provide guidance on what is reasonable and this is due to
be published for consultation shortly. The NASUWT would want the Code to include the
elements that ensure employees get a fair hearing under the statutory procedure, for
example, a meeting to discuss the request, right to accompaniment at the meeting, a
written decision and right to an appeal.
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