A Raw Deal: The Inequality of the SEN Reforms for the Welsh People

Nathan Davies outlines why increased divergence between special education needs provision is a raw deal for Wales

In recent weeks, the Welsh Government have invited views, as part of a formal consultation process, to their proposed changes to the Law in Wales relating to the support which will be given to children and young people with special educational needs. This consultation process has now concluded, although it remains to be seen whether the White Paper issued will be significantly changed from its original content following views being expressed from a number of organisations across the country.

This week on Click on Wales

This week on Click on Wales we’ll be examining the upcoming reforms to the provision of additional learning needs in Wales. This year the Welsh Government published a white paper and opened a consultation on Welsh provision, suggesting a rebranding of special educational needs to additional learning needs and other reforms.

On Click on Wales this week, a series of experts, service users and charitable organisations respond.

Today: Nathan Davies of Sinclairslaw says Wales is getting a raw deal

Tuesday: Denise Inger of SNAP Cymru argues that legislation is just the beginning of reform of additional learning needs provision

Wednesday: Cerys Owen, a campaigner from Powys, explains why additional learning needs units are vital for her family

Thursday: Mike O’Neill, an additional learning needs teacher, shows why reforms will impact positively on his work

Friday: Professor Ruth Northway asks whether these reforms amount to more than a name change.

This month, the Children and Families Act 2014 will be introduced in England. This is comprehensive legislation which provides a number of key changes to Education Law, most notably the onus on the respective Education and Social Care departments of each Authority and the local Health Boards to produce a collaborative document to ensure the child/young person’s needs are met utilising a holistic approach. This is very different to what the Welsh Assembly White Paper proposes.

It is inadequate to concentrate solely on a young person’s educational needs when health and social care issues often need to be taken into account when providing support. The Welsh Government have adopted an unhelpful approach in this instance which departs from the all-encompassing features of the Children and Families Act. Instead, the Government have concentrated on introducing new terms such as ‘additional learning needs’ to replace ‘special educational needs’; a purposeless addition to any new legislation.

What is most concerning is that Statements of SEN will no longer be created under the new proposals. Instead an ‘Individual Development Plan’ will replace these which, given the proposed changes, will only seek to weaken the protection offered to those who rely upon it. Their description is similar to that of an Individual Education Plan (IEP) which has no legal force. One cannot expect a parent to have faith that their child will have the required legal protection with such a document in place for them.

The only positive from the process is that an IDP will now be in place for a young person up to the age of 25, thereby doing away with the need for a Learning and Skills Plan once a transfer to a FE College is arranged, for example. The IDP assessment process, however, is extremely vague with no mention as to which body will bear responsibility for conducting the same, not what the ingredients of the assessment will consist of. The rights of appeal that exist in relation to an Authority not conducting a statutory assessment, or one which is substandard, that exist at present may also not continue under the IDP procedure; an alarming removal of the ability to challenge for parents. This could potentially lead to Authorities refusing to assess young people whereby parents would have to accept the decision of the assessing body; a remarkable removal of rights.

Overall, if one were to draw a comparison between the legislation in place in England next month and what is proposed for Wales, parents in England would be far happier with their ability to obtain the best possible provision for their children. Wales will continue to lag behind with an inadequate and diluted system.

It remains unclear as to why the Welsh Government did not seek to adopt the Children and Families Act 2014 which, having received substantial input from a number of influential figures and groups, represents a marked improvement upon previous legislation (Education Act 1996) and indeed the initial White Paper issued by the UK Government.

It is feared that Wales may slip further behind England in supporting young people with learning needs as a result of the dilution of protection that is proposed through the White Paper. One can only hope that the input given from various groups, including Sinclairslaw, is considered in detail and the legislation amended accordingly. A major concern is that the final legislative document will not contain specific, mandatory duties that an Authority (for example) must adhere to; instead discretion can be utilised thereby limiting challenges as to their decision-making. Without this action, there is a very serious risk that children and young people in Wales may not even have the same protection that they enjoy under the Education Act 1996 (s.324(5)).

Nathan Davies is Associate Education Law Solicitor at Sinclairslaw

7 thoughts on “A Raw Deal: The Inequality of the SEN Reforms for the Welsh People

  1. This is a rather weird piece. From the ungrammatical headline “… increased divergence between special education needs provision …” (nowhere is it explained what is diverging from what) to the constant undertone that somehow Wales is leaving England.

    Fact check for Mr Nathan Davies: laws made in Wales are for Wales, whereas laws made in England are for England. School education is an entirely devolved matter.

    So, please argue the pros and cons of the proposed Welsh legislation based on its own merits, or otherwise. Discuss things within the sphere of Welsh thinking. By all means cite English (or Scottish, Irish, French or Senegalese) examples if you like, but these are merely examples within your argument for Wales. England (or perhaps Englandandwales) is not the archetype from which one always departs.

    Or is Wales just a slightly inferior version of England?

  2. At present the parents of a child with additional educational needs have a statutory right to request an assessment by the Local Educational Authority. There is a statutory timetable for this. The child may then get a Statement which details the provision which the LEA has to make in order to help the child. This statement is a legally-enforceable contact between the child and the LEA.

    Government (London or Cardiff) attempts to change this system and to divert children into non-statutory provision, without legally-enforceable contracts, are budget-driven. Erosion of the statutory rights of children with additional educational needs will result in less provision, and will leave children and their parents without rights of appeal.

    For obvious reasons, this should be resisted.

  3. What is the covered in the term “special educational needs”? Have heard that language differences come under it, which means that people moving into this country although their children don’t have learning difficulties or physical disabilities, the funds are used to teach them English, interpreters are supplied, funds are also used for culture differences as well.
    If this is true, then it leaves those who do have real problems learning, or have physical disabilities still at a disadvantage, as a part of the funding is going towards helping perfectly capable children to learn a second language, instead of helping those that really need help, because of disabilities, be they learning or physical .

    As it is at the moment, a lot of volunteers are used in schools to help children that are slow at learning. So funds are not fully going towards helping children who do really have special educational needs and need that extra help.

  4. “It remains unclear as to why the Welsh Government did not seek to adopt the Children and Families Act 2014..”

    I should have thought that was pretty obvious by now – the WAG is determined to be different from England no matter what the human cost.

    What a pity it has taken more than 2 months for this important matter to reach the IWA Click forum when it was flagged up as an issue by Michael Charles of Sinclairslaw and the BBC on the 25th of July, 2014.


  5. Having absorbed the lead article and its principal points, I do agree with Nathan’s observations, comments and conclusions but didn’t intend to comment till I read Emlyn Uwch Cych contribution which I find exceptionally narrow-minded, blinkered and arrogant.

    I’ll deal with SEN reforms in the concluding part of my contribution but it seems to me that doing things the ‘Welsh Way’ is not helpful at all and for many reasons including a distinct lack of expertise in many areas within the Welsh Assembly and exceptionally low level of scrutiny that the Welsh Assembly can give to any Bill or Act originating from the Welsh Government (In most part a distinct lack of the ‘grey matter’ and I’m not being patronising)!

    Westminster’s legislative structure compared to Wales has vast resources in terms of the knowledge base and a lot greater scrutiny too and to ignore it is simply ARROGANCE as who suffers by not getting it right – In this case children!

    Just a slight digression, but I believe relevant as for many years I worked in the interpretation and application of the legislative aspects covering Medical Devices accreditation process within the EU and the FDA regions and recall a meeting in Dublin with the Irish NHS specialists in this field – It didn’t take me long to figure out that they ‘poached’ most of British standards word for word – I asked jokingly is this the Irish laziness or Pragmatism? – They replied “A bit of both and you lot are better than us at this, so what’s the point of reinventing the wheel” – Perhaps a lesson for the WAG too!?

    In my view devolving education to the Welsh Government was an unmitigated disaster as the Westminster politicians failed to recognise the wider legal implications as it was clear and right from the outset that Welsh Government’s utmost priority was imparting the Welsh language into children and where education was seen to be a principal route to achieve this aim (Creation of a ‘Bilingual Nation’).
    As I understand it the Welsh Government has no legal remit nor any devolved powers regarding the English language and if I’m correct then it beggars a question where English speaking parents in Wales who may want to have their children’s education through the English language legally stand in this regard or the two ill-considered Westminster Acts on Welsh language being ‘more equal of the two’ override all other legislative provisions?

    Furthermore, it appears to me that ‘linguistic safeguards’ through parental choices provisions contained within the original Education Act for England and Wales, no longer apply as we now have the Education (Wales) Act 2014 which seems not to have any provisions to offer or safeguard parental choices!?
    Then we have the Welsh Tribunal which seems to be the only arbiter to determine legality of any dispute concerning the Education (Wales) Act and which seems to be based entirely on members of the legal profession who are Welsh speakers too!?

    Perhaps the Welsh Office should refer this matter to the Supreme Court for Judicial Review or a ruling as doing nothing is not an answer. In my humble opinion WAG should only have a remit for Welsh Medium education and English Medium education should be retained at Westminster level and subject to the same curriculum as England and Ofsted inspection – Ultimate choice on linguistic preferences must strictly be with the parents and certainly not in the remit of the Welsh state!?

    Then we have the EU Human Rights legal provisions which clearly state that the concessions to minority languages can’t be used as a discriminatory tool against majority – but in Wales this is simply ignored in the same way as many other equality definitions including parental choices as to the educational language of instructions – It seems to me that the Welsh Tribunal overrides not only Laws of England and Wales but equally the Laws of the EU according to the WAG!!??

    We have already seen Welsh divergence from English curriculum and divergence from the latest standards of School Governance provisions which England recognised as being flawed, ineffective and unworkable and had to change but in Wales any scrutiny or questioning of the Welsh Way is seen as being ‘Anti-Welsh’ and therefore dismissed with the extreme PREJUDICE.

    Back to Nathan’s original article on the Inequality of SEN reforms and try to look at it from the North Wales perspective where in most parts English speaking kids are immersed into Welsh language during the primary learning years. Many of these kids do have learning difficulties and sadly are often seen by the teachers of being a burden in a classroom as these kids hold back the rest of the class in learning Welsh language and are often pushed out by referrals to CAMHS or simply ignored, this can’t be right and these children need and must have adequate and working SEN provisions.

    Finally it would be good to have Nathan’s opinion on the concerns and legal confusion that I perceive to exist in Wales!

  6. Responding to a few points;

    “It is inadequate to concentrate solely on a young person’s educational needs when health and social care issues often need to be taken into account when providing support”
    But doesn’t the IDP have a specifically multi-agency approach? The proposals stress multi-agency working quite clearly, and even propose consortia arrangements between local authorities to make commissioning processes more reflective of these proposals.

    “…introducing new terms such as ‘additional learning needs’ to replace ‘special educational needs’; a purposeless addition to any new legislation.”
    As I understand it the two terms do differ – additional learning needs is more holistic, and includes references to health and social care needs. It isn’t just jargon for the sake of jargon.

    “The rights of appeal that exist in relation to an Authority not conducting a statutory assessment, or one which is substandard, that exist at present may also not continue under the IDP procedure; an alarming removal of the ability to challenge for parents.”
    Isn’t the point of an IDP to develop a framework through which young people can get adequate support in education without the need for a statutory assessment? In which case, parents can resort to other arrangements in case of disagreement, i.e. going through the school?

    “It is feared that Wales may slip further behind England in supporting young people with learning needs as a result of the dilution of protection that is proposed through the White Paper.”
    I think we should recognise the qualitative difference between protection under the law and the provision of education. If educational provision is up to standard and is sufficiently inclusive, there should be no need for parents or for young people to require ‘protection’. If not, then those parents and young people should be engaging with schools directly as part of a wider project of school improvement, rather than raising legal challenges against local authorities to secure the provision of resources which frankly do not exist.

    Ultimately, I don’t agree with the author’s reading of the new proposals. The approach to special need in education based on a legalistic framework of statements and rights might satisfy certain principles, but is unsustainable in the long term as resources are finite. The statementing approach also hasn’t produced the kinds of outcomes for learners that we would like to see. Yes, it will be a painful transition for parents who have come to rely on statements as an answer to the problems they face, but in the long run a more inclusive agenda which focuses on needs rather than labels will help to secure better educational attainment, but also social and emotional outcomes for all learners.

  7. This article sums up my fears for the proposed new system. The removal of legal safeguards will be disastrous, as they are the only checks and balances that exist for ensuring adequate educational provision.

    With note to the previous poster, first you need to get your child into an appropriate school before any serious, constructive dialogue can take place with a school. In my experience, this has required statutory assessment in the first instance to get anyone to discuss adequate school provision sensibly.

    Disabled children have the right to an appropriate education, just as typically developing children do. As such, talk of “additional needs”, which suggests that disabled children are in need of benevolent donation, is frankly insulting. If our collective interest is focused on equality of opportunity in education, a rights-led approach is indicated rather than a needs-led one.

    In the question of allocation of resources for educating disabled children, one should balance the shorter term costs of robust earlier intervention to foster independence with the longer term costs of social care as adults. Resources are not “finite” and this is not a zero sum game: presenting a political choice in resource allocation as an indisputable scarcity is at best, misrepresentation.

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