Consultation closing date: 19 November 2014
Your comments must reach us by that date
Draft Special Educational Needs and Disability (Detained Persons) Regulations 2015 and Draft RevisedSEN and Disability Code of Practice: 0-25 years
If you would prefer to respond online to this consultation please use the following link:
We are consulting on the draft Special Educational Needs and Disability (Detained Persons) Regulations 2015 and draft revisions to the 'Special educational needs and disability code of practice: 0 to 25 years.
The regulations relate to children and young people (under 19 years old) with special educational needs who are detained in youth custody. They will commence from April 2015 and are being introduced as part of the Children and Families Act 2014.
Information provided in response to this consultation, including personal information, may be subject to publication or disclosure in accordance with the access to information regimes, primarily the Freedom of Information Act 2000 and the Data Protection Act 1998.
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The Department will process your personal data (name and address and any other identifying material) in accordance with the Data Protection Act 1998, and in the majority of circumstances, this will mean that your personal data will not be disclosed to third parties.
/ Please tick if you want us to keep your response confidential./ Reason for confidentiality:
/ Name: Anne Fox
/ Please tick if you are responding on behalf of your organisation.
/
/ Name of Organisation (if applicable): The Communication Trust
/ Address:8 Wakley Street, London, EC1V 7QE
If your enquiry is related to the DfE e-consultation website or the consultation process in general, you can contact the Ministerial and Public Communications Division by e-mail: or by telephone: 0370 000 2288 or via the Department's 'Contact Us' page.
Please mark the category which best describes you as a respondent. If other, please specify.
/ Parent/Carer /
/ Child /
/ Young Person (16+)
/ School Headteacher/Teacher /
/ Further Education Principal/Teacher /
/ Special Educational Needs Co-ordinator (SENCO)
/ Governor /
/ Local Authority /
/ Information, Advice and Support Services Network
/ Educational Psychologist / /
/ Voluntary Organisation /
/ Professional Association/Union
/ Health Commissioner /
/ Health Professional /
/ Health Provider
/ Early Years Provider /
/ Social Care Professional /
/ Training/Apprenticeship Provider
/ Person in charge of Relevant Youth Accomodation /
/ Youth Offending Team /
/ Custodial Education Provider
/ Probation Services /
/ Other
/ Please Specify:
The Communication Trust is a coalition of 50 not-for-profit organisations.
Working together we support everyone who works with children and young people in England to support their speech, language and communication.
Introduction
Firstly, The Communication Trust very much welcomes the inclusion of detained children and young people in the Code of Practice and the revisions made to improve the regulations and guidance around this crucially important part of The Children and Families Act.
We particularly welcome the collaborative approach by the Department to developing and improving these revisions in partnership with the sector through The Council for Disabled Children implementation working group of which we have been really pleased to be a member.
We are hopeful that in partnership with the changes being implemented in the youth justice system as part of the Transforming Youth Custody programme and through these SEND Reforms, support can be improved for these children and young people so that they go on to have a better future.
We have tried throughout our response to identify aspects of the revisions which we particularly welcome. However there remain areas we feel must be strengthened further, to ensure they provide robust support for the children and young people with speech, language and communication needs (SLCN) that we support. We know that upwards of 60% of children and young people in custody have SLCN[1] and many of these have never been identified or supported appropriately. The suggestions and issues we’ve raised aim to ensure the guidance and regulations meet the spirit of the Act’s intentions to really improve the situation for all children and young people with SEND.
Form of our response
We have structured our responses to all of the questions in this consultation around specific numbered paragraphs of the regulations and Code. This is for ease and to be absolutely clear about what we are suggesting. Where we’ve provided longer answers, we’ve also included a summary of key points where we outline overarching issues and provide an overview of the specific details we go on to highlight. We have selected ‘no’ in the tick box answers because we feel there is a lack of clarity or content across the Code and Regulations in places, which must be addressed to ensure they have the very best impact on the children and young people we work to support. This is not however a reflection on the intention of the guidance which is strongly welcomed by our sector and we hope the suggestions we make will further strengthen it.
Draft Special Educational Needs and Disability (Detained Persons) Regulations 2015
1 Do the draft regulations set out clearly what local authorities, youth offending teams, persons in charge of relevant youth accommodation, custodial education providers and health commissioners are required to do regarding children and young people with special educational needs who are in youth custody?
/ Yes / /
/ No /
/ Not Sure
/ Comments:
The regulations set out clearly the duties around many of the responsibilities of these key groups. However, we feel the lack of detail on the duties around children and young people with existing plans or those who have them finalised whilst detained, is too weak. We feel there are also parts of the regulations which have not taken into consideration in all places relevant where children and young people in detention’s needs and backgrounds require a different approach to those established in the community.
Summary points
General
- Appropriate person- The definition of who an ‘appropriate person’ is as listed in 70(5) of the Act should be reiterated in the regulations to ensure what it means is clear from the outset given the essential importance of role.
- Relevant youth accommodation- clarity on whether secure colleges will be added to the list of accommodation included in this category (in line with currently discussed plans to develop these further) will be important to ensure the guidance is forward looking and joined up with other changes happening in the system.
- There is little detail provided around the court process and sentencing and also no information for what rights/responsibilities are active for those children and young people being held on remand.
- Clarification should be made in the regulations about the requirement to support identified SEND whilst in detention, whether or not an EHC plan is currently in place or will be in place for post detention needs.
- The regulations provide no guidance as to what the LA’s (or anyone else’s) responsibilities are around children and young people entering youth custody with an existing EHC plan (or statement) or where EHC plans are finalised and come into force while the young person remains in relevant youth accommodation. TheAct makes clear that the regulations will ‘make provisions about the keeping of EHC plans’ -74 (3). This includes information about securing and providing appropriate special education and health services for these children and young people while they are detained. This detail promised in the Act must be added to the regulations to make the responsibilities of local authorities and health commissioners around this vital area clear. From reading the regulations, practitioners would not be clear that they are required to provide what is set out in the plan or arrange something as close to it as possible while the child or young person is detained- not just post detention. Whilst in detention children and young people can be at their most vulnerable and it’s essential everything is done to ensure their additional needs are met effectively and as quickly as possible.
- A more robust process is needed for obtaining information about a detained person’s needs and for identifying and ensuring application of provision which may be required to meet these needsto best support children and young people in this specific situation.
- Speech and language therapists should be added to the list of professionals an LA must seek advice from (because of the significant proportion of detained children and young people who have SLCN).
- Those outlined on the list of professionals an LA must seek advice from should also be given access to results of any assessments (Asset, Asset plus, CHAT for example) carried out by the service on the child or young person on entry to the secure estate when considering each child or young person’s needs.
- We havesignificant concerns around the regulations regarding transferring processes from custody to the community or vice versa. Due to the circumstances detained children and young people are often in when they return to the community, the legal framework for how assessments which begin in one environment and move to another must be very robust and clear. There appear to be no regulations regarding what should happen if, during the assessment process, the young person moves to another establishment; arrangements around this must be made clear in the regulations.
- These reforms and responsibilities outlined in the regulations(and detailed further in the Code) are totally new to YOTs and there will need to be significant guidance, training and support provided to them to ensure they are aware of their role and crucially, that they are equipped with the knowledge and expertise to carry it out effectively and confidently.
- We would like to see greater importance given to the education provider within the relevant youth accommodation given their vital role in providing support to all detained children and young people with SEN, including seeing them listed as a key partner with whom to share information throughout the assessment, drafting and finalising process for EHC plans.
- It is essential that it is made clear who is responsible for commissioning and funding speech and language therapy for detained children and young people. This is currently a huge area of confusion and is too often resulting in a poor service for those 60%+ of children and young people with SLCN in youth custody.
- Across the regulations and Code of Practice, we are concerned that there is very little responsibility placed on, or detail provided around, the crucial role of the multiple adult services professions given their essential role in supporting those 18-25 year olds on release back into education in the community. There should be a requirement that any EHC plan travels with the young person, so that if they enter the adult secure estate, this plan must be forwarded to the relevant person within the secure estate and included with documentation as part of their transition back into the community via either the CRC or probation team working with them. It would be very useful for practitioners involved if there was an agreed named contact in the adult secure estate for this information to be passed to in each case.
6 (1)- We are concerned about the lack of detailed, accurate and helpful information that could be gained regarding the child or young person’s needs from the process outlined in part (b) of this section. We would like to see it amended to ensure that the information provided by schools/FE institutions is also accompanied by the information provided from a person the LA is satisfied has experience of teaching children or young people with special educational needs, or knowledge of the differing provision which may be called for to meet needs. We feel this is a necessary amendment to the way things would be done in the community to reflect the particular needs of these children and young people:
We are concerned that getting information from the head of the school the child oryoung person attended prior to their detention (as outlined in (aa) ) without also contextualising this information with the input of a specialist from the LA as outlined in (bb) would not, in many cases, provide accurate information about the current needs of the young person.
We know that many children and young people with SLCN do not have their needs accurately identified or supported at secondary school (see figure 1 below). The profile of SLCN changes over time; social communication difficulties can become more prominent[2] and the nature of difficulties more complex. Good ‘surface’ language skills[3] or clear speech[4] might make everyday conversation manageable, effectively masking underlying SLCN. Associated behaviour, emotional and social difficulties (BESD) or literacy difficulties may be most visible[5] and be identified as priorities; it is likely that this will be particularly the case where a child or young person has ended up in contact with the secure estate. The graph[6] below illustrates the issue clearly.
Additionally, the lack of specialists[7] such as speech and language therapists in secondary schools coupled with lack of confidence of school staff[8] and limited knowledge of typical language development in adolescence, mean that it is hard to identify when students arebehind.[9]
Figure 1-DfE 2014 SEN statistics- Despite the significant prevalence of young people with SLCN in secondary schools, national SEN dataconsistently report a fall in the numbers of young people identified with SLCN compared to primary school.
The lack of school practitioner confidence in identifying SLCN, and a lack of specialist support for this in schoolsis further compounded by the fact that many children and young people will not have attended a school in the months, and possibly even years, prior to their detention[10]. This means that many heads/principals may not be aware of any existing SLCN the child or young person may have.
-To further strengthen 6 (1) we believe it is essential that speech and language therapistsare added to the list of professionals the LA must seek advice and information from. We would like to see this added after –‘(d) psychology advice and information from an educational psychologist’ and would suggest it says something like- ‘(e) advice and information about speech, language and communication development from a speech and language therapist’.The Act gives the regulations power to amend this list in 71 (11-e) and we feel this addition would strengthen the process significantly given the well evidenced prevalence of children and young people with SLCN in the youth justice system, not to include this specialism in the information sought would be to ignorethis evidence. We would also like to see this suggestion reflected in 10.76 of the updated Code of Practice.
- 6 (2)We very much welcome the recognition that specialists must be consulted where the child or young person is believed to have a sensory impairment. We would like to see a similar importance placed on getting specialist input from a speech and language therapist as part of the information sought for an EHC needs assessment as outlined above.
- 6 (3) Should include any information collected from the assessments the service will have carried out on the child or young person on entry to custody- The ASSET tool and CHAT assessment as a basic, but also importantly, any enhanced or additional assessments that it is practice to use in the setting.In particular for the children and young people we represent, we would very much like to see settings encouraged to use and share information gathered from the ‘ASSET Plus’ screening tool, which includes a specific and detailed focus on speech, language and communication. These tools will, in many cases, capture needs not previously identified and give essential information for anyone involved in providing advice or information to the EHC assessment.
-7 (a and d) These two requirements on the LA are very similar and could potentially be usefully combined into one more comprehensive point about working collaboratively with the child/young person and their parent throughout the process. It will be important too to reflect that this must be in a way that is accessible to the child or young person, particularly taking into account any communication or language difficulties they may have which may impact on their ability to understand.
- This section does not use the ‘appropriate person’ descriptor which has been used throughout the rest of the regulations. If this is unintentional it would be better to maintain consistency of using this term for clarity. Please see our comment in summary about the usefulness of reiterating the definition of an ‘appropriate person’ in the regulations themselves as opposed to just the Act for clarity.