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

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)).