Following the implementation of the Children and Families Act 2014 a new Code of Practice has been approved and is available to download from here.
This Code of Practice will apply from 1st September 2014. Requests for assessments made after 1st September 2014 must be carried out under the Education, Health and Care Plan system. Any statutory assessments or other arrangements will still be subject to the Education Act 1996 system. For details of the transitional arrangements please click here.
Section 77 of the Children and Families Act 2014 requires public bodies who have functions under the Act to “have regard” to the Code of Practice. Those public bodies are specified in s.77(1) as
(a) local authorities in England;
(b) the governing bodies of schools;
(c) the governing bodies of institutions within the further education sector;
(d) the proprietors of Academies;
(e) the management committees of pupil referral units;
(f) the proprietors of institutions approved by the Secretary of State under section 41
(independent special schools and special post-16 institutions: approval);
(g) providers of relevant early years education;
(h) youth offending teams;
(i) persons in charge of relevant youth accommodation;
(j) the National Health Service Commissioning Board;
(k) clinical commissioning groups;
(l) NHS trusts;
(m) NHS foundation trusts;
(n) Local Health Boards.
In addition “those who exercise functions” for the purposes of the Act must also have regard to the Code.
The Tribunal when hearing appeals must also “have regard” to the Code of Practice. This means that the Code of Practice does not have to be followed exactly in every circumstance but if it is not going to be followed then there should be good reasons for not doing so.
Local Authorities are entitled to have their own local policies as part of their resource allocation but these policies should be in line with the Code of Practice. If they are not then a Tribunal will follow the Code. The most common example of this is where a Local Authority will not asses a child for a statement (or under the new system the EHC Plan) unless they have met some specific criteria in accordance with their own policy. If the local policy imposes higher criteria than the Code of Practice then this is not a legitimate reason to refuse to carry out a statutory assessment.
While Local Authorities have the key responsibilities, there is a duty for public bodies to co-operate and it is therefore important that all public bodies working with children age 0-25 with special educational needs are aware of the guidance contained in the code.
Written by Russell Holland, Barrister at No5 Chambers
NoVate Direct Legal Solutions can help with every aspect of special educational needs and disability discrimination. We have access to lawyers with substantial experience in appeals related to statements of special educational needs and we can provide advice in all aspects of the new Children and Families Act 2014. If you have a problem, please contact us to discuss how we can help. Complete a contact form or call on 0845 201 0160.