Council announces potentially unlawful move to EHC Plans

The Children and Families Act is not anticipated to come into force until September. Part of the legislative underpinnings, the SEN Code of Practice, which gives guidance to local authorities, schools and families, has not yet been finalised. Until Royal Assent is given, local authorities must comply with the current law.

As a pathfinder North Yorkshire has been trialling EHC Plans for some time. Under the pathfinder rules, parents must be offered a choice of process, either the current statutory assessment process that includes Statements of Special Educational Need, or they can opt for the EHC assessment and potentially receive an EHC Plan for their child . At any point parents can ask to change from the Plan process to the statutory assessment process, including changing a Plan for a statement once issued.

The key difference between the two is that the statutory assessment process is governed by the law and current Code of Practice (the name does rather give it away). It allows parents to appeal to the SEND Tribunal if they do not believe the council has provided appropriately for their child. The EHCP process allows for no such appeals - there is currently no legal oversight. It is our understanding that any child's Plan that is created by a pathfinder, before legislation is passed, has no legal basis either. This would include any Plan where the process starts before legislation is enacted, and is completed after legislation comes into force. The implications of this are that moving to Plans now will be a false economy as the council will have to go through the process again for each child. 

Earlier this year the council announced that it was moving to the new EHCP system in April ahead of the legislation (see this post for details). It has now confirmed the changeover in a document dated May 9 (page 9, here). The result of this move is that it appears parents will not be given  the choice of process and therefore have no protection in law over decisions made by the council or health services.

Such a seeming disregard for the law and removal of parental rights does not bode well for the new legislation which was, in part, created to "..minimise the adversarial nature  of the system for families and to maximise value for money." (DfE Support and Aspiration)

UPDATE

According to this recent FOIA response from the council, parents can still opt for the currently legally-backed statutory assessment and statementing process. This seems like a reversal in the position taken by North Yorkshire - though this has been denied. In that case why did it announce it was moving to the new system in April if nothing has changed?

Excerpt:

I can reassure you that North Yorkshire is not about to do anything 
illegal. The document you refer to is an update on the SEND Strategy. The
 quoted sentence might more comprehensively have said, " . . . with the 
informed consent of parents" which has always been the Local Authority's 
position. The attached document is for parents and is or will shortly be 
on the website of the Parent and Carer Forum (NYPACT) and on the Council's
Local Offer website. It explains in detail what North Yorkshire is 
intending to do within the current legislation whilst preparing for
imminent changes in the law.

Foremost School closure consultation repsonses

"..they have let down and betrayed some of the most vulnerable young men in North Yorkshire" - staff member at Foremost School.

The Council has published the consultation responses regarding the closure of Foremost School (scroll to Appendix 6). There will be no investigation into the millions spent. Document is here.

Council pays more money to education solicitors

Just published on North Yorkshire's Open Data page is the council spending for March. It includes two payments of £3500 to Baker Small Solicitors, with whom the Council has a contract to provide educational advice.

Total to date

20/3/14   Other Hired and Contract Services     £ 3500.00 (link)
20/3/14   Other Hired and Contract Services     £ 3500.00 
1/8/13     Other Hired and Contract Services     £ 7000.00 (link)
8/5/13     Other Hired and Contract Services     £10000.00 (link) (Corrected figure 13.07.13)
6/2/13     Other Hired and Contract Services     £ 7000.00 (link)
21/9/11   Other Hired and Contract Services     £ 8000.00 (link)
29/3/11   Other courses - course fees               £   850.00 (link)
Total                                                               £39850.00 (ex VAT)

About Baker Small
Baker Small are a firm of solicitors that provides legal advice to local authorities on SEN appeals and tribunals and can represent the council at Special Educational Needs Tribunals.  The council use Baker Small for representation and advice when parents appeal to the Tribunal Service in order to increase its chance of winning and thereby reduce the cost of its education bill. The Tribunals are supposedly informal and parents are advised that they do not need representation. This can lead to situations whereby the local authority is legally represented out of the public purse and parents are not. There is no public funding available for parents to be legally represented at Tribunal.

North Yorkshire's Autism Self Assessment 2013

Public Health England required every local authority to undertake a self-assessment to assess progress of the 2010 Adult Autism Strategy. Information on the project can be found here (including initial findings) and North Yorkshire's self assessment (completed November 2013) can be found here.

NYCC SEN Performance report

Includes data on previous years / trends and also latest data (either 2012 or 2013):

Total number of statements: 1670
Number of new statements: 208
Total sum allocated to mainstream schools to support high and low needs statements: £18M

Assessments by disabled children's service (initial/core/timeliness)

SEN/Non-SEN attainment gap: 55% at Level 4 KS2 English and Maths
SEN/Non-SEN attainment gap: 50.8% at 5 GCSEs in English and Maths

A Level average point score
NEETs

Personalised Pathways: 26 young people in 2013/14
Self Esteem
Enjoyment of lessons
Making a difference
Bullying

View the report here

Ofsted v National Autistic Society

There's certainly a lot of information in the NAS audit report (2012, last post) and we'll be sifting through it for some time. The usefulness in having an autism specific audit is indeed great, and amongst other things it allows us to compare the NAS's views of specialist provision with those of Ofsted.

Hookstone Chase Enhanced Mainstream School, Harrogate
The audit comments on the need for the council to:

Ensure quality of strategies and interventions

at the school and later says that good practise was observed.

To be sure this gives us very little to go on, but given these things lie at the very heart of what an EMS does, it at least begs some further questions. Does this mean provision is generally poor, generally variable or generally good? Ofsted inspected the school in 2011 and said of the resourced provision:

Carefully targeted support ensures that pupils in the school’s Resourced Provision make good progress

and

The small number who are very well supported as part of the school’s Resourced Provision achieve well in relation to their starting points.

and

Potentially vulnerable pupils and pupils with special educational needs and/or disabilities, including those in the Resourced Provision, are provided for well.

It made no recommendations for improvement for pupils in the resourced provision.

Ofsted's 2013 inspection report was much the same:

Pupils with statements of special educational needs, including those supported by additional resources for children with communication and interaction difficulties and those receiving support for school action plus, receive excellent teaching and support.

and

Extremely well-managed enhanced provision for communication and interaction difficulties makes a vital contribution to the lives of pupils and families of pupils within this school and others in the locality.

It, too, made no recommendations for improvement for pupils in the resourced provision. So Ofsted saw a well run unit, whereas the NAS were, in effect, asking questions of the service. Who is right?

King James Enhanced Mainstream School, Knaresborough
The audit also raised funding issues for King James, the secondary enhanced mainstream school:

Re-evaluate the resourcing to ____ [incorrectly redacted - should read KJ (King James)] EMS based on the number of pupils with a statement for autism. 

Let's not make any assumptions about whether resourcing was too high or low, and turn to Ofsted, who inspected the school at the end of 2011, which is at the same approximate time as the NAS carried out its audit. What does the inspection report say of the EMS?

Nothing.

It doesn't even acknowledge there is a specialist resourced provision at the school. All we can find is this:

As a result, achievement is now good in most subjects and for all groups, including those with special educational needs and/or disabilities.

Not only does this audit leave the Council having to answer questions, it leaves Ofsted in the same boat.

It takes two, baby

Following not one, but two interventions by the Information Commissioner's Office, North Yorkshire has finally released the audit of its autism services by the National Autistic Society's Accreditation Service from 2012.

The document is not an accreditation report but an audit of the ASCOSS (outreach) service, the Enhanced Mainstream Schools and special schools. It was commissioned in order to help the Council re-organise the services for children and young people with autism, and was written for internal use.

The Council has said that changes have been made following the report's publication, but it is currently unknown what those changes are.

The original report, supplied by the Council, had incorrectly redacted the initials of a school (KJ) - which we take to be King James, and which prompted a second intervention by the ICO.

The document has been through an Optical Character Recognition process and does not retain the original formatting:

The National Autistic Society  

North Yorkshire Autism Review 

Management, structure and support  

Strengths 

o Growing capacity in NY for meeting the needs of children and young people with autism through the ASCOSS and EMS 

o Clear systems implemented for evidence based tracking of impact 

o Forward thinking joint working with health and adult services to map what is available in county for those with autism 

 o Dissemination of Communicate in Print to libraries 

o Development of termly surgeries with an EP and LA officer  

Areas for Development 

o Align outreach service across all areas 

o Call all areas ASCOSS 

o Ensure all work is consistent 

o Develop links with parents via information sessions 

o Consider a feasibility study of the travelling time required by different specialist teachers in leading outreach in the different localities, and a comparison of workloads 

o Consider asking ______ (Mowbray) to lead the special schools outreach across Mowbray and Forest in order to improve systems 

o Consider whether there is an opportunity to develop an EMS at Woodlands to provide for those with high needs with need highly specialist support as an alternative to going to OOC provision 

o Revise the partnership arrangements with schools so that there are clear expectations about the provision and its implementation from both sides, with regular opportunities to evaluate and report on the quality of this 

o Restructure the EP support to ASCOSS by allocating EP time to EMS and locality meetings 

o Provide appropriately trained EPs to all schools involved in outreach 

o QA EPS in EMS/special schools by asking TIC to evaluate the effectiveness of their service to support the EMS/ special schools at least annually. 

o ls it feasible to develop further training and outreach to colleges across all areas to ensure consistency of approach from school onwards? 

o Why are primary EMS resourced differently from secondary in terms of staffing allocation? 

o Re-evaluate the resourcing to ____ [incorrectly redacted - should read KJ (King James)] EMS based on the number of pupils with a statement for autism. 

Develop a LA autism strategy for adults as well as children and young people 

Develop further integrated working across agencies, especially social care 

Develop more support for families in the home to ensure consistency of health and wellbeing 

Why change the provision to ASCOSS when a diagnosis of autism has been given, when a pupil has had consistent support in EMS? 

Who monitors the pupils who are awaiting diagnosis and their access to receiving support? Eg Ryedale? 

Consider the ASCOSS going for NAS accreditation

Staff Competencies  

Strengths 

o Well qualified staff in ASCOSS and EMS  

Areas for Development 

o Clarify the role of the Forest specialist teachers: 

o Give more guidance and support regarding the allocation of roles to teachers and ATA. 

Ensure all staff in Forest School are supported to give a specialist support role in mainstream schools. Staff working in mainstream schools must understand the mainstream setting and what the initial observation and action planning indicated re further support. After initial discussion and observation a planned action plan to be agreed by specialist teacher and HT or SENCo. Planned liaison with mainstream staff so all involved with pupil are aware what the specialist teacher is undertaking and agreed times/dates.  

Appropriate grading of pupils 1-5. Awareness that pupil might move either way during thisprocess and if needs increase what procedures are in place? 

Appropriate awareness of each school and school staff before intervention 

Ensure strategies or interventions are possible in school before working with pupil 

Ensure that supports to help pupil and there to support pupil and not an exercise in producing aresource. What is the area that he specialist teacher is trying to support? Does the support help the pupil improve his/her understanding of this area? Is this support enhancing the expertise ofthe mainstream staff? How do they embed their understanding of this support in their practice? 

ls the specialist teacher using solution focussed therapy or evidence based therapy? 

CP training 

Hookstone- Ensure quality of strategies and interventions. Social scripts to be revisited by allschools. Encourage practise by mainstream teachers but main message of script is a positive social understanding of situation for the pupil not a change of behaviour. 

QA management of the service.

Outcome measures 

Strengths 

Rigorous Scientist-practitioner approach' applied to observation, assessment and interventions 

Portfolio of research-based interventions 

Comprehensive, detailed Record of Support and lntervention 

Autism specific KPls  

Areas for Development 

Currently outcomes measurements are not applied consistently across all providers. 

Quality assurance of school's views of the service provided by the EMS is patchy. 

Ditto re parent's views and pupil voice. 

This would provide ASCOSS with some baselines against which to measure effectiveness and improvement. 

ASCOSS database needs to include those with a diagnosis of autism, those awaiting a diagnosis, and those without a diagnosis but receiving support, to enable tracking of the interventions given by the ASCOSS. 

The support recorded should include any discussions at locality meetings. 

Consider using a provision management tool such as that used in Surrey to record 

     o The intervention and the expected outcomes, and the staff and children involved 

     o The overview of the range of interventions used, the length of time, and the success of theoutcomes. 

Specialist education 

Strengths 

Good practice seen in Mowbray, Boroughbridge, Hookstone Chase, King James, Springwater, Woodlands School   

Outreach 

Strengths 

o Innovative practice being developed: King James, Woodlands, Springwater and Mowbrayo Good use of Locality meetings and network meetings 

o Availability of ongoing support after intervention 

o Links with FE 

o Parent Partnerships at Locality meetings  

Areas for Development 

Ensure there is transfer of information about use of other agencies when a referral comes from a school,and how this is allocated, and the record of these inputs  

Ensure all schools understand the resources available on Fronter 

o Quality assure the use of different approaches eg social scripts (ref Hookstone) 

Quality of recording/Reporting Strengths  

Areas for Development 

o This needs streamlining with continuous recording rather than having separate reports for every visit  

Information and guidance 

Strengths 

o Shared resources and training  

Areas for Development 

o Be proactive in ensuring that secondary aged students have access to an understanding of what is legal and what is not in the criminal justice system, with an autism perspective 

o Understanding bullying 

o SRE  

Full Council meeting 19 February 2014: news round up from meeting reports


Quarterly Report to The Council - Appendices Booklet
Priorities for 2014/15
The Council will work to improve educational outcomes and narrow the gap for vulnerable groups of children (p8) and begin reviews of SEN and Behaviour (p130):


Children with special educational needs and review of short breaks
"In September 2014, the Children and Families Act will introduce new arrangements for assessing and supporting children with special educational needs and disabilities. Whilst the government recognises that the new legislation will bring greater expectations on local authority resources, we do anticipate that our reviews of current arrangements of services for these groups will deliver savings. We can also see that we will need to carry out a review of ‘short breaks’ following benchmark data showing an above average spend on these in North Yorkshire. Until such a review is completed, we are not able to comment upon the likely impact on the ‘short break’ offer. At the same time, we are committed to improving the experience of disabled young people and their families and to improving their transition to adult provision by trying to achieve greater opportunities for local independent accommodation, employment and training." (p152)

Statement by Children's Service Portfolio Holder Tony Hall
Between 2011-15 Children's Services will have made £20M+ savings
Between 2015-19 Children's Services will make a further £16M savings

"Although these proposals will result in a major transformation of delivery arrangements for some of our services, targeting our support on the most vulnerable and those with the greatest level of need, we have recognised the importance of early intervention and of delivering our statutory responsibilities in terms of safeguarding, special educational needs and disabilities and school improvement. Many will of course be subject to public and staff consultation at appropriate stages in their progression." (P1)

Annual Report by the Young People's Champion, Janet Sanderson (see end of Tony Hall's statement)
As champion, Ms Sanderson made one visit to an event about SPLD strategy, no other mention of SEN is made.

Report of the Executive
"Further review the provision of discretionary home to school transport arrangements including post 16 (Appendix J Sheet 2 (CYPS 5) of the report to the Executive)."(P7)

"Commence a review of delivery arrangements for services to disabled children and their families including the provision of short breaks (Appendix J Sheet 2 (CYPS 8) of the report to the Executive)....Changes to procurement and delivery arrangements would contribute to this project. A saving of this magnitude in the overall provision budget, (including Children’s Resource Centres) could result in a reduction in the level of service provided for families. (CYPS8, P154)"(P7)

"More effective use of the High Needs funding within the Dedicated Schools Grant will create appropriate efficiencies to support relevant and valued services funded through general fund. (CYPS 9, p154)"

Statement by Schools Portfolio Holder Arthur Baker 
Closing the Attainment Gap between those with SEN and those without
"The Council has recently launched a major initiative focussed on raising standards within our schools with the objective of enabling all North Yorkshire children and young people to achieve well..

The “Closing the Gap” innovation project, launched at the start of term, seeks expressions of interest from clusters of schools or teaching alliances who wish to develop innovative ways of closing the progress and attainment gaps between disadvantaged pupils and their peers. The project is supported by significant funding from the Wrea Head Trust and will take place over a period of three years. The work will be monitored by a project board consisting of local headteachers, local authority advisers and academic partners representing The Joseph Rowntree Foundation and the Institute of Effective Education." (P2)

Commission for School Improvement
"At county level an Education Partnership will be established, made up of leaders from the school commissioning groups and the local authority. It will oversee the work of school improvement collaborations and ensure they are set within the wider education agenda and that resources to schools are used and distributed effectively. It will provide oversight and scrutiny of school admission arrangements and approve strategic plans concerning special educational needs, the 14-19 strategy, behaviour management and the education of looked-after children."(P2)

11. 
    

Council told to disclose audit of children's autism services

North Yorkshire County Council has been told by the Information Commissioner's Office that it must disclose an audit of its autism services for children. The ICO said this would prevent potential discrimination against autistic children.

NYCC asked the National Autistic Society's Autism Accreditation team to audit its service in 2012 as part of a strategic review. The Harrogate and District National Autistic Society (a group of parent volunteers) asked to see the audit so they could respond more effectively to the Council's then consultation on autism services for children. As far as they were aware, the audit was the first and only time the service had been audited by an independent body and were keen to see how well the service was performing.

The Council refused twice, and the parent group appealed to the ICO. (It is worth noting that a public body spending money on a public service did not deem it sufficiently in the public interest to demonstrate how well that service was run.)

In his decision (6 January, 2014) in favour of the parent group the Information Commissioner's Office cited the following reasons:

Failure to disclose [the audit] could potentially indirectly discriminate against autistic children as they would not have the benefit of knowing which schools the auditors consider to provide the best performance to meet their children's particular needs or if their child's school could be performing better as regards to the needs of their child.  

There is a strong public interest in allowing the public access to information on how schools compare to each other and whether they provide as good a service as others.

The local authority can be called to account by parents. 

Allow parents to make an informed choice as to the most appropriate schools for their children

Allow for a more informed dialogue between parents and local authority. 

The full decision notice can be found here. NYCC can appeal the decision, otherwise must publish the audit by 10 February.

Invitations to trial EHC Plans

Here are the two letters North Yorkshire are currently sending parents to recruit for the pathfinder programme for Education Health and Care Plans:

Those going through statutory assessment here (pdf)

Those going through annual review here (pdf)

Our advice is to stick to the current legally enforceable statutory assessment and statementing process. For an in depth view of the erosion of legal rights caused by the draft SEN Code of Practice and Children and Families Bill, see IPSEA here.