These regulations will come into force on 1 September 2014. They basically extend  the current pilot scheme for personal budgets to all local authorities and apply it to the new Education Health and Care Plans regime. I posted back in 2012 about the pilot scheme and these  new regulations make very few changes to the substance of that scheme.

The DfE’s guidance includes the following about personal budgets:

“Services which can be offered as a personal budget:

‘As part of their local offer, local authorities should set out a local policy for personal budgets, developed with parents and young people, which describes the services across education, health and social care that currently lend themselves to the use of personal budgets, how that funding will be made available, and includes clear and simple statements of eligibility criteria and the decision making processes that underpin them.

To achieve this, local authorities should work with their partners to:

• identify and agree the funding streams and services for inclusion from September 2014 and develop the necessary infrastructure to support their inclusion;
• identify and establish the information advice and support necessary at an area and individual level to help families consider options for, and to take up and manage, personal budgets;
• develop a pathway for personal budgets within the assessment and planning process and the workforce and cultural changes necessary for a person centred approach; 
• identify how the new joint commissioning strategies will support greater choice and control beyond September 2014, with a view to new enhanced offers from September 2015 through to September 2017 (and beyond) as the market is developed and funding streams freed up from existing contractual arrangements; and
• maintain the core principles in the SEND Code of Practice at all times, ensuring children, young people and families are involved in the decision making processes at both an individual and strategic level.”

There are examples of case studies and lessons learnt from the pilot scheme here.

[I posted this yesterday and it started a discussion on Twitter (@Kamm11KBW) about how the current pilot scheme is working. As I commented in 2012, ” Whilst it is only a pilot scheme, it applies to a fairly large number of local authorities and those pilot authorities are required to follow the scheme for all people with SEN statements or learning difficulty assessments“. The discussion on Twitter suggested that some parents’ experience is that some local authorities have been slow to recognise that the pilot scheme gives rights to individuals, and also that some parents were not clear about the content of those rights or about how personal budgets fit into the wider SEN system.  So, here is a very brief summary of how it should be working now and how it should work in future with EHC Plans:

The LA must provide the special educational provision in the SEN statement / EHC Plan. One way in which it can do that is by providing a sufficient direct payment to the parent (or other appropriate person, under the regulations) for them to secure any of the goods and services listed in section 532A(2) of the Education Act 1996. The LA only has a power to make a direct payment if various conditions are met, as set out in the regulations. The parent / young person does not have an absolute right to a direct payment, but they do have rights (i) to receive information and advice, (ii) to have any request for a direct payment considered, (iii) to be given reasons if they are not granted a direct payment, and (iv) to a review of any refusal. A direct payment can only be used for goods/services in a school or college  if the head teacher / principal  consents. If the LA grants a direct payment, it must monitor its use, which can only be used to secure the agreed provision. There are some changes to the detail of this scheme, with the introduction of EHC Plans covering SEN from early years to age 25, but the general idea remains the same.]

Rachel Kamm, 11KBW, @Kamm11KBW

The Requirements for School Food Regulations 2014 (SI 1603/2014) have been promulgated, setting out the rules for school lunches and other food provided in school which will come into force on 1 January 2015.  They apply to:

• maintained schools
• pupil referral units
• academies, except for those those who entered into funding agreements between September 2010 and June 2014 (when apparently no relevant clause was included in the funding agreement)
• maintained nurseries and nursery units within a primary school
• food provided by a local authority or governing body to pupils on school trips of 7 days or longer

Requirements for school lunches include:

• meat or poultry at least 3 times per week, but processed meat no more than once (primary schools) or twice (secondary schools) per week and no economy burgers
• oily fish at least once every 3 weeks
• one portion each of vegetables, fruit and dairy (cheese, yoghurt, fromage frais and custard) per day
• fried food and food including pastry no more than twice a week
• a fruit-based dessert (at least 50% fruit) at least 2 times per week
• no salt to be available to add to food
• semi-skimmed and lactose reduced milk to be available at some point during school day

And when reaching for your afternoon snack, note the rules for food provided otherwise than as part of a school lunch (i.e. tuck shops etc.):

• fruit and/or vegetables must be available
• no sweets, cakes, biscuits, savoury crackers or breadsticks
• no crisps or other pre-packaged snacks apart from nuts, seeds, vegetables and fruit with no added salt, sugar or fat
• no sweet fizzy drinks

The Department for Education has also published advice for governing bodies on the new rules which is available, together with a copy of the regulations, here.

Bon appetit!

Paul Greatorex

On 10 June 2014, Judge Treu of the Superior Court of California struck down three laws relating to teacher retention as unconstitutional.  Such is the significance of the case, he began his judgment with a quotation from Brown v Board of Education (1954) 347 US 483.  The case of the plaintiffs (as there they are still called) was summarised by Judge Treu as follows:

“Plaintiffs claim that the Challenged Statutes result in grossly ineffective teachers obtaining and retaining permanent employment, and that these teachers are disproportionately situated in schools serving predominantly low-income and minority students.  Plaintiffs’ equal protection claims assert that the Challenged Statutes violate their fundamental rights to equality of education by adversely affecting the quality of the education they are afforded by the state“.

The laws that were struck down were:

• A “Permanent Employment Statute” whereby tenure is granted to teachers after approximately two years;
• A set of “Dismissal Statutes” which are apparently “too time consuming and too expensive” for officials to contemplate using to dismiss ineffective teachers.  The evidence before the court was that dismissing a teacher costs $50,000 to $450,000 and takes between two and ten years.
• A “Last-In-First-Out Statute”, which requires that when redundancies are to be made, the most junior staff must be dismissed before more senior staff.

The case, Vergara v State of California, was brought in the name of nine California public school students (i.e. state school students), and was funded by telecoms millionaire David Welch by means of an advocacy group called Students Matter.

The case is interesting because (as the Judge notes), it is ostensibly not about educational equality, but about the quality of education.  The evidence relating to the impact of those teachers on their students, Judge Treu held, “is compelling.  Indeed, it shocks the conscience“.  The evidence he refers to states that the 1-3% of teachers in California who are “grossly ineffective” cost the students in their respective classrooms $1.4 million in lifetime earnings per teacher (when lost earnings of all students in that class are summed).   The Economist claims that teacher quality is more important than class size, income level, or access to high-tech equipment in influencing educational outcomes.

Whatever you think of the politics of the case, it is illustration of the global trend of activist groups turning to the courts to achieve their aims.  In the UK, most of the big education cases have been reactions to changes to policy – see for example the Building Schools for the Future and English GCSE judicial reviews, and the mooted JR of the new rules on taking holidays during school terms.  The Vergara case, however, is different because it is a direct challenge to an established orthodoxy.  An equivalent legal challenge in the UK might, for example, be to the grammar school system (though I doubt the evidence in such a case would be nearly as striking as in Vergana).

Vergana is also interesting because it reflects a longer-term focus in academia on how ‘teacher quality’ is important to educational outcomes: see the world leading research produced by the Centre for Educational Policy Analysis at Stanford University.  As UK judicial reviews have tended to be reactive in nature, the evidence relating to the issue of concern has usually been scanty.  See for example the tuition fees judicial review (in which, as with the above JRs, 11KBW members were prominent).  There, Elias LJ noted: “The debate before us has consisted of each side marshalling arguments directed largely to predicting what the cumulative outcome of the various measures will be… In my judgment, at this stage it is all too uncertain and it would be wrong for the court to find disparate impact where that is neither an obvious nor even a strong inference from the facts.”

Putting aside the other grounds on which Elias LJ found that claim to be unfounded, perhaps what Vergana illustrates is the value of pursuing a case once the academics have done their research, and not before (putting aside problems of delay, which are often surmountable).  The employment tribunal fees judicial review, in the which the court in effect told the claimants to come back when (or if) there is enough evidence to determine the substantive issue, is perhaps another illustration of this idea.  The extent to which concrete evidence, rather than speculative evidence, might affect the merits of a case heard by an English court on a matter of social policy would be interesting to see.

The ruling made in Vergana is stayed pending appeal, and has caused a considerable political storm in the USA.  I wonder, though, whether in the meantime it will inspire solicitors working in education law to spend more time with education academics, or to try to persuade groups like the Sutton Trust to take the legal route?

Thomas Ogg

I posted yesterday about the publication of the SEND Code. Everything is coming together (finally!)  for the start of the new SEN regime from 1 September 2014.

The key provisions in Part 3 of the Children and Families Act 2014 commence on 1 September 2014. There will be Education, Health and Care Plans for children and young persons up to age 25, replacing both SEN statements and Learning Difficulty Assessments. For a summary of the changes and issues raised, see the  presentation produced back in April by Joanne Clement of 11KBW.

Since the Act gained Royal Assent, the Special Educational Needs and Disability Regulations 2014 have been laid before Parliament and also will come into force on 1 September 2014. The Special educational needs and disability code of practice: 0 to 25 years is in place, subject to Parliamentary approval. The Department has set out the proposed transitional arrangements and published implementation guidance.

To get an idea of what an EHC Plan may look like in practice, have a look at the examples of EHC Plans that have been published on the SEND pathfinder website.

Rachel Kamm, 11KBW

The Government has published the Special educational needs and disability code of practice: 0 to 25 years. Subject to obtaining Parliamentary approval, it will apply from 1 September 2014 (when the majority of Part 3 of the Children and Families Act 2014 comes into force).

Alongside the Code, the Government has published a note setting out its intentions for the transitional arrangements and (recently updated) implementation guidance for local authorities and health partners.

The DfE today announced that Councils will receive £45m in funding to prepare for the new SEN regime.

Rachel Kamm, 11KBW