Monday, 1 July 2013

ENGLAND – NEW DEAL FOR DISABLED CHIDREN'S EDUCATION

You'd better believe it...

Rather than think critically, rather than confront established interests, rather than act decently on behalf of children with so called 'special educational needs' and their families, for the greater good and credit of our society, the Whitehall and Westminster establishments have conspired together to kick the ball of special educational needs deep, deep, deep into the long grass.

What a cheap trick they have pulled. Rather than dealing with the problems that face the whole flawed notion of special educational needs, both empirical and moral, they have rolled it up with all sorts of other problems of childhood and family life and, as far as they can with matters to do with health and social care as well, like a great big grubby lump of left-over scraps of Plasticine. Pick out from that what you can to answer your own specific real-life developmental problems.

The sad thing is that this ploy works (doesn't it always?). Sorting out the new problems caused by this new solution will keep everybody involved busily occupied for years as new meta-complexities are identified, and still nobody will know how to teach and bring up needy children and make life sense for their families.

As far as life after the new Act is concerned, this will have even less room for such concrete questions as 'What should one actually do?' and 'Does anyone know how to do anything?'

Of course, I could be terribly wrong and this time it will all be so much different (meaning better) unlike last time, and the time before...

A useful document for practitioners

Meanwhile, let me recommend a document, one of many such I am sure, that may prove useful for those in Conductive Education who will have to struggle with the effects of the new legislation in England – in their families and in their places of work:


This is a nice, critical, lawyerly overview of the new legislation (therefore without the potential special pleading and wishful thinking of agenda-driven overviews from 'the trade') written by barrister Jennifer Thelen of the Chambers at 39 Essex Street in London WC2 – not to be confused with the very dissimilar Essex Street in Birmingham.

Four sections interested me in particular at my own first reading. Other readers will doubtless find their own favourites.

Paragraphs 12 and 13

12.  The Bill merges education assessment and provision with the care planning process as well as health provision. This is of course a laudable goal, but one that presents significant practical difficulties. This is perhaps evidenced by the fact that the Bill, at the same time as promoting this cohesive planning process, retains very different treatment of education vis a vis health and care. In fact, the requirements for the local authority to identify, assess and provide relate only to education. The responsible commissioning body (i.e. the body that is under a duty to arrange healthcare provision) holds the duty to arrange the specified health care provision for the child in question; but that is not enforceable in the First-tier Tribunal (Special Educational Needs and Disability). The mechanism for enforcing this duty has yet to be specified. No obligation attaching to the provision of social care is outlined in the Bill. Further, health and social care are only required to be specified in the EHC plan if they are reasonably required by the learning difficulties and disabilities which
result in him or her having special educational needs.

13. Whilst styled as a “cross border” approach, as drafted the EHC plan remains essentially about educational needs. Once a plan is in place, a local authority has a duty to secure only the special educational provision for the child as outlined therein. If a child has health or social care needs, but no educational needs, he will not be able to obtain an EHC plan.

Crisp this legislation ain't. Nor promising. Good luck with nailing your rights, people.

Paragraphs 14 and 15

14.  As originally drafted there was a risk that therapy such as speech and language therapy would be described as “health provision”. This would lead to a different enforcement mechanism. To address this, the Bill now specifies that:21(5) “Health care provision or social care provision which is made wholly or mainly for the purposes of the education or training of a child or young person is to be treated as special educational provision (instead of health care provision or social care provision).”

15.  Because the First-tier Tribunal’s jurisdiction will remain limited to educational matters, tribunals will continue to need to make difficult distinctions between education and other needs, as they will only have the power to order the later. The “wholly or mainly” test set out above appears to set a higher standard than the current position, whereby a Tribunal has a wide discretion to label provision as educational.

Never mind the speech therapists – they are more than able to take care of themselves – they have opened up a crack that I suspect Conductive Education for various ages and in various forms of provision ought to be able to exploit and perhaps widen.

Paragraph 17
  1. The Education (Special Education Needs) (Assessment and plan) draft regulations provide for:
  • consultation with the parent/young person as soon as practicable after receiving a request;
  • a maximum of six weeks for a local authority to decide if it is going to carry out a statutory assessment of needs\; and
  • requests for advice from the parents/young person; headteacher or principal (educational advice); medical practitioner (from the clinical commissioning group); educational psychologist; advice in relation to social care and transitions into adulthood; and any other advice thought appropriate.
Have I been out of it all so long? Why are educational psychologists included here as a specified group? Are they no longer considered figures of mockery and distrust? Why are they so trusted by authority? (Ahem.)

Paragraphs 65 and 66 (concluding paragraphs)

65. The changes as announced were wide ranging. The changes and drafted are certainly significant. However, when contemplating the legislation as it now stands, one is left with the distinct feeling that of the aspirations regarding the integration of health, care and education have been watered down.

66. As always the devil is in the detail. As the legislation winds its way through the parliamentary process, and incorporates both further specificity regarding health and care elements, as well as the results of the pathfinder process, it may be that the desired integration becomes a more concrete part of the framework. It may also be, however, that this new framework looks more and more like the current one.

To put it differently, no change. It isn't going to work.

Through no fault of their own, only the lawyers will win. The children and their families... they will continue to fulfill their time-immemorial historical role. They will lose.

Reference

Thelan, J. (2013) Special Educational Needs: Children and Families Bill 2013, London, 39 Essex St Chambers

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