12 Sep 2012

A new Code of Practice in 2014

The new draft legislation on reform of provision for children and young people with special educational needs indicates that a new Code of Practice will be implemented in 2014.

This news item was published in September 2012. For the latest updates on the progress of the new Code of Practice, type 'Code of Practice' into the search bar above.

The proposed new provisions, presented in 51 clauses in the draft legislation, do not include details of arrangements that will need to be put in place to make it manageable for local authorities – and schools – to make a smooth transition from using the current statutory framework to using a new one. The DfE recognises the challenges involved in introducing a new system and is currently looking at ways of doing so that will not be disruptive or counterproductive. At the same time, it is committed to introducing new arrangements as soon as possible for the benefit of children, young people and their families.

What’s new?

The new provisions of a special educational needs statutory framework will retain a requirement for a Code of Practice (clause 44), the purpose of which will be to give guidance on how functions under these new provisions will be carried out by:
• local authorities
• governing bodies of schools and further education institutions (further education colleges and sixth form colleges)
• proprietors of academies (including free schools)
• management committees of pupil referral units (PRUs)
• providers of relevant early years education.

These bodies will be required to take account of the guidance in Code of Practice, and so too will other providers of services, including health and social care.

The new Code will almost certainly contain much that is familiar, as well as new provisions covering well documented plans to introduce streamlined assessment procedures, education and health care plans, the option of personal budgets, joint commissioning of services and associated responsibilities for delivery, and greater parental/student choice with regard to educational placement in a diverse range of educational provision.

Defining the new single school-based category?

Clauses in the draft legislation do not cover all of the issues that SENCOs and other SEN professionals will be interested in. For example, there is no reference to the critical issue of defining a new single school-based category of special educational needs to replace current School Action and School Action Plus. This is a matter of concern, but will no doubt be addressed through further development work and discussion with relevant stakeholders, including, I hope, experienced SENCOs. The result of this further work will inform the content of the new Code as it is drafted during the passage of the Children and Families Bill in the coming months. A final version should then be available after the Bill has been given Royal Assent, probably in 2013, enabling local authorities, schools and other education providers, and parents to familiarise themselves with it before provisions come into force in 2014.

Helping parents stay infomed

What will be new in the Code is statutory guidance on inclusive schooling. Under the current system, this is published separately from the Code of Practice and the DfE is concerned about a lack of awareness of key information that should help parents to make informed choices about the educational provision they may want for their child. This guidance will also be important to young people leaving school who may want to express their views on future education or training opportunities.
The new Code will also extend its coverage of education phases – and this is particularly welcome – to cover further education and training. This is in accord with a commitment to meeting the needs of children, young people and adults between the ages of 0-25.

When the DfE published its green paper on SEN and disability in 2011, it made it clear that a new Code of Practice would be shorter and less bureaucratic than the current version. This may be difficult to achieve if the 2014 Code is to cover guidance across all phases of education and training and meet the needs of different audiences, including education, health, and social service professional, parents, children and young people, and other interested professionals.

SEN terminology to be reviewed

Finally, there is a possibility that the new Code of Practice will abandon the use of the term SEN completely. Problems of terminology were pointed out to the DfE during its consultation on the SEND green paper, so it is somewhat surprising the department has only just acknowledged this in a letter to Graham Stuart, Chair of the Education Select Committee on 4 September 2012. In writing to the committee, Sarah Teather, minister of state for children and families at the time, asked for advice on whether it would be appropriate to replace the term ‘special educational needs’ with ‘learning difficulties and/or a disability’. It will be interesting to see if the committee, in a ‘pre-legislation scrutiny’ role, does have a view on the matter, and if so, how it might influence the drafting of legislation without slowing down the process considerably. The minister’s request for advice may have been belated, and could yet provide an opportunity for important debate because of big questions it raises about complex concepts and not just the labels that parents and professionals may have grown accustomed to using. However, because the government will want to finalise legislation and guidance sooner than later, it seems likely that they will settle for the status quo of SEN, the currently favoured SEND or the ungainly learning difficulties and/or disability (LDD) favoured by Ofsted a few years ago.

Christopher Robertson