Main changes and summary of 2014 SEN Code of Practice

Just as an update and reminder.  Here are the changes from the SEN Code of Practice (2001)
The main changes from the SEN Code of Practice (2001) reflect the changes
introduced by the Children and Families Act 2014. These are:14
• The Code of Practice (2014) covers the 0-25 age range and includes
guidance relating to disabled children and young people as well as those with
SEN
• There is a clearer focus on the participation of children and young people and
parents in decision-making at individual and strategic levels
• There is a stronger focus on high aspirations and on improving outcomes for
children and young people
• It includes guidance on the joint planning and commissioning of services to
ensure close co-operation between education, health and social care
• It includes guidance on publishing a Local Offer of support for children and
young people with SEN or disabilities
• There is new guidance for education and training settings on taking a
graduated approach to identifying and supporting pupils and students with
SEN (to replace School Action and School Action Plus)• For children and young people with more complex needs a co-ordinated
assessment process and the new 0-25 Education, Health and Care plan (EHC
plan) replace statements and Learning Difficulty Assessments (LDAs)
• There is a greater focus on support that enables those with SEN to succeed in
their education and make a successful transition to adulthood
• Information is provided on relevant duties under the Equality Act 2010
• Information is provided on relevant provisions of the Mental Capacity Act 2005

Related guidance that organisations may find it helpful to consider are: The Mental Capacity Act Code of Practice: Protecting the vulnerable
(2005) or the summarised version

Mental Capacity Act 2005 – summary from Department of Health

  • Last modified date:
    8 February 2007

The Mental Capacity Act 2005 (c.9) received Royal Assent on 7 April 2005

Introduction

The Mental Capacity Act 2005 provides a statutory framework to empower and protect vulnerable people who are not able to make their own decisions. It makes it clear who can take decisions, in which situations, and how they should go about this. It enables people to plan ahead for a time when they may lose capacity.

Guidance on the Act will be provided in a Code of Practice. People who are placed under a duty to have regard to the Code include those working in a professional capacity e.g. doctors and social workers. A draft was made available to assist Parliamentary consideration of the Bill and is available on the DCA website (under “Mental Capacity Bill and supporting documents”).

The whole Act is underpinned by a set of five key principles stated at Section 1:

  • A presumption of capacity – every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise;
  • The right for individuals to be supported to make their own decisions – people must be given all appropriate help before anyone concludes that they cannot make their own decisions;
  • That individuals must retain the right to make what might be seen as eccentric or unwise decisions;
  • Best interests – anything done for or on behalf of people without capacity must be in their best interests; and
  • Least restrictive intervention – anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms.

What does the Act do?

The Act enshrines in statute current best practice and common law principles concerning people who lack mental capacity and those who take decisions on their behalf. It replaces current statutory schemes for enduring powers of attorney and Court of Protection receivers with reformed and updated schemes.

The Act deals with the assessment of a person’s capacity and acts by carers of those who lack capacity

  • Assessing lack of capacity – The Act sets out a single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time. It is a “decision-specific” test. No one can be labelled ‘incapable’ as a result of a particular medical condition or diagnosis. Section 2 of the Act makes it clear that a lack of capacity cannot be established merely by reference to a person’s age, appearance, or any condition or aspect of a person’s behaviour which might lead others to make unjustified assumptions about capacity.
  • Best Interests – Everything that is done for or on behalf of a person who lacks capacity must be in that person’s best interests. The Act provides a checklist of factors that decision-makers must work through in deciding what is in a person’s best interests. A person can put his/her wishes and feelings into a written statement if they so wish, which the person making the determination must consider. Also, carers and family members gain a right to be consulted.
  • Acts in connection with care or treatment – Section 5 clarifies that, where a person is providing care or treatment for someone who lacks capacity, then the person can provide the care without incurring legal liability. The key will be proper assessment of capacity and best interests. This will cover actions that would otherwise result in a civil wrong or crime if someone has to interfere with the person’s body or property in the ordinary course of caring. For example, by giving an injection or by using the person’s money to buy items for them.
  • Restraint/deprivation of liberty. Section 6 of the Act defines restraint as the use or threat of force where an incapacitated person resists, and any restriction of liberty or movement whether or not the person resists. Restraint is only permitted if the person using it reasonably believes it is necessary to prevent harm to the incapacitated person, and if the restraint used is proportionate to the likelihood and seriousness of the harm.
  • Section 6(5) makes it clear that an act depriving a person of his or her liberty within the meaning of Article 5(1) of the European Convention on Human Rights cannot be an act to which section 5 provides any protection.
  • The Department of Health and National Assembly for Wales have each issued interim advice to the NHS and local authorities on the implications of the European Court of Human Rights judgment in HL v United Kingdom (the “Bournewood” case), pending the development of proposals for new procedural safeguards for the protection of those people falling within the “Bournewood gap”.

The Act deals with two situations where a designated decision-maker can act on behalf of someone who lacks capacity

  • Lasting powers of attorney (LPAs) – The Act allows a person to appoint an attorney to act on their behalf if they should lose capacity in the future. This is like the current Enduring Power of Attorney (EPA), but the Act also allows people to let an attorney make health and welfare decisions.
  • Court appointed deputies – The Act provides for a system of court appointed deputies to replace the current system of receivership in the Court of Protection. Deputies will be able to take decisions on welfare, healthcare and financial matters as authorised by the Court but will not be able to refuse consent to life-sustaining treatment. They will only be appointed if the Court cannot make a one-off decision to resolve the issues.

The Act creates two new public bodies to support the statutory framework, both of which will be designed around the needs of those who lack capacity

  • A new Court of Protection – The new Court will have jurisdiction relating to the whole Act and will be the final arbiter for capacity matters. It will have its own procedures and nominated judges.
  • A new Public Guardian – The Public Guardian and his/her staff will be the registering authority for LPAs and deputies. They will supervise deputies appointed by the Court and provide information to help the Court make decisions. They will also work together with other agencies, such as the police and social services, to respond to any concerns raised about the way in which an attorney or deputy is operating. A Public Guardian Board will be appointed to scrutinise and review the way in which the Public Guardian discharges his/her functions. The Public Guardian will be required to produce an Annual Report about the discharge of his/her functions.

The Act also includes three further key provisions to protect vulnerable people

  • Independent Mental Capacity Advocate (IMCA) An IMCA is someone appointed to support a person who lacks capacity but has no one to speak for them. The IMCA makes representations about the person’s wishes, feelings, beliefs and values, at the same time as bringing to the attention of the decision-maker all factors that are relevant to the decision. The IMCA can challenge the decision-maker on behalf of the person lacking capacity if necessary.
  • Advance decisions to refuse treatment – Statutory rules with clear safeguards confirm that people may make a decision in advance to refuse treatment if they should lose capacity in the future. It is made clear in the Act that an advance decision will have no application to any treatment which a doctor considers necessary to sustain life unless strict formalities have been complied with. These formalities are that the decision must be in writing, signed and witnessed. In addition, there must be an express statement that the decision stands “even if life is at risk”.
  • A criminal offence – The Bill introduces a new criminal offence of ill treatment or neglect of a person who lacks capacity. A person found guilty of such an offence may be liable to imprisonment for a term of up to five years.

The Act also sets out clear parameters for research

  • Research involving, or in relation to, a person lacking capacity may be lawfully carried out if an “appropriate body” (normally a Research Ethics Committee) agrees that the research is safe, relates to the person’s condition and cannot be done as effectively using people who have mental capacity. The research must produce a benefit to the person that outweighs any risk or burden. Alternatively, if it is to derive new scientific knowledge it must be of minimal risk to the person and be carried out with minimal intrusion or interference with their rights.
  • Carers or nominated third parties must be consulted and agree that the person would want to join an approved research project. If the person shows any signs of resistance or indicates in any way that he or she does not wish to take part, the person must be withdrawn from the project immediately. Transitional regulations will cover research started before the Act where the person originally had capacity to consent, but later lost capacity before the end of the project.
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SEND Code of Practice – update

The new SEND Code of Practice reminds us

The bodies listed in paragraph iv. (see list below)  must have regard to the Code of Practice. This
means that whenever they are taking decisions they must give consideration to what
the Code says. They cannot ignore it. They must fulfil their statutory duties towards
children and young people with SEN or disabilities in the light of the guidance set out
in it. They must be able to demonstrate in their arrangements for children and young
people with SEN or disabilities that they are fulfilling their statutory duty to have
regard to the Code.

and that ‘Identifying and assessing SEN for children and young people whose first language is not English requires particular care’.

Something that I am particularly pleased to see addressed too often schools have stood behind ‘I only have one or two of those,’ whatever those are. I assume they are talking about those in the vulnerable category, and in my view rather than treating them with extra special care and interest they use it as a reason not to develop the child,  but subconsciously hope if they withdraw it/them in small groups then they disappear from the periphery.

All children are ‘entitled to a full and appropriate curriculum, whilst being challenged to move to the next level as soon as they are ready to do so.’

This does mean that teachers will find classes more challenging and that skills they had previously, no longer work in this new environment.

A practical guide to supporting EAL and SEN learners

As school managers and leaders we must be open to this and ensure staff are trained and/or supported whilst developing the child.  Added to this the new classification (under the new code of practice) from BESD to SEMH that stands for Social, Emotional and Mental health difficulties teachers need to be more aware.

Mental Health difficulties in a child and young person manifest differently … as it does in adults. Some become quiet, withdrawn others are loud and can be verbally adept, but once asked to put pen to paper there is a difference between their abilities. The wider it is the more the alarm bells should be ringing. If you are interested a good start can be found at http://www.youngminds.org.uk/  I will write more about mental health in future posts.

To buy A practical guide to supporting EAL and SEN visit the website here

SEND Code of Practice –  Who must have regard to this guidance?
iv. This Code of Practice is statutory guidance for the following organisations:
• local authorities (education, social care and relevant housing and employment
and other services)
• the governing bodies of schools, including non-maintained special schools
• the governing bodies of further education colleges and sixth form colleges
• the proprietors of academies (including free schools, University Technical
Colleges and Studio Schools)
• the management committees of pupil referral units
• independent schools and independent specialist providers approved under
section 41 of the Children and Families Act 2014
• all early years providers in the maintained, private, voluntary and independent
sectors that are funded by the local authority
• the National Health Service Commissioning Board
• clinical commissioning groups (CCGs)
• NHS Trusts
• NHS Foundation Trusts
• Local Health Boards
• Youth Offending Teams and relevant youth custodial establishments
• The First-tier Tribunal (Special Educational Needs and Disability) (see v.)

EAL or SEN? You decide

At last Rona and I have completed our handy practical guide to help and support you as teachers through the … are they just EAL or SEN or both? minefield.

Bang up to date with the curriculum and SEN changes for the 2014/15 academic year which sees the age range higher and the introduction of a new acronym SEMH which we will all have to be familiar with not just the SENCO or EAL TA.

 

 

A practical guide to supporting EAL and SEN learners

A practical guide to supporting EAL and SEN learners

Structured around current legislation it gives practical support to support you in your decision making as to whether they are naughty children just trying it on or have a need that is currently not supported.

Great for new teachers or experienced alike.

Contents page EAL SEN

Contents page EAL SEN

 

For a full copy of the SEND code go to –

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/342440/SEND_Code_of_Practice_approved_by_Parliament_29.07.14.pdf

For a copy of the e book priced at £15.00 (not including p and p) contact lsbooksinfo@gmail.com. Printed copies available soon.

back cover

 

Leaders 3 -Leading and Managing Staff

So you have made it to leading your own team or have being doing so far a while and want to check what you have forgotten.  (I often did that remembered 5/6 things and the sixth would just be waylaid so I had to keep refreshing myself).

It is crucial that you develop a team spirit where everyone helps everyone else to make it right that definitely doesn’t mean blaming anyone. Those working in schools with high blame culture ethos’s eventually start to fail as people are fearful of getting things wrong and let’s be fair in a day many things change and different decision have to be made out of the hundreds of different unexpected decisions that you make over a week if one is wrong then hey ho.  The only thing I would say is that if that person genuinely thought they were doing the right thing and their rationale is believable then its a mistake so we all help to solve it, if not then we are looking to another route i.e. competency but this will be no surprise as you will have already noticed other things that seem out-of-place.

Here are some questions to guide you as you think about your position and leader and manager of your team.

1. How will you help to achieve constructive working relationships with pupils and staff?

2. How ill you sustain your own motivation as well as those of others?

3. How will you sue performance management to improve the effectiveness of all of your team?

4. How will you manage and co-ordinate professional development or new teacher development via INSET, mentoring, coaching, workshops and lesson observation?

5. How will you work with the SEND and or EAL coordinators?

6. What reports do you need to send to Head teacher, Senior Team, Governors, Parents, Pupils about your subjects policies, plan and priorities, subject targets and professional development plans?

SEND – what do these terms mean?

Special Needs has many different strands to it so below are just some examples of names we may hear from SEN and SEND co-ordinators but not fully understand.

Asperger’s Syndrome – Diagnosis is for those who have difficulty communicating, difficulty in social relationships and lack of understanding of how people feel.

Behavioural, Emotional and Social difficulty – is used for those whose behaviour, social and emotional difficulties present a barrier to learning and participation.

Bipolar Disorder – Bipolar people experience mood swings from periods of overactive, excited behaviour to deep depression.

Complex Learning Difficulties and disabilities – These conditions overlap and interlock creating a complex profile.

Dyslexia – Dyslexia sufferers have difficulty with the written word. It can affect reading, spelling, writing, memory and concentration.

Dyspraxia – This is a generic term to explain a range of movement difficulties.

Elective mutism – Those sufferers of this emotional disorder means that sometimes the person can speak fluently but it other situations they remain silent.

Multi-sensory Impairment – Those with MSI experience a combination of visual and hearing difficulties and whilst many think they are deaf/blind they could have some residual sight or hearing.

Semantic disorder – difficulty in understanding and using the meaning of words.

Specific Language Impairment – Difficulty in understanding and/ or using spoken language.