New SEN Framework

Full implementation of the Special Educational Needs and Disability Act (Northern Ireland) 2016, as intimated by the Northern Ireland Executive, will occur throughout 2021 and 2022. The end goal is a more responsive SEN Framework for children who have, or may have, special educational needs (SEN).

Currently, the Department of Education is seeking to develop a new “improved and more responsive” SEN Framework. This new SEN Framework comprises three elements:

  1. Primary legislation: Special Educational Needs and Disability Act (Northern Ireland) 2016 (the SEND Act).
  2. Secondary legislation: New SEN Regulations.
  3. Guidance: A new SEN Code of Practice.

So far, the road to this new Framework has been protracted.

SEND Act 2016

As the primary component of the new SEN framework, the SEND Act 2016 received Royal Assent in March 2016. The 2016 Act establishes new duties on the Education Authority (EA) and on Boards of Governors in schools, with regard to children with SEN and the provision and assessment of SEN. The legislation also enacts new rights for parents and for pupils.

As such, the EA will be compelled to publish an annual plan for special education provision, while seeking and having regard to views of a child when making special educational provision decisions. Alongside its independent dispute avoidance arrangements, the EA will also be required to put in place independent mediation arrangements.

Meanwhile, boards of governors will be obliged to appoint a learning support coordinator to coordinate provision for children with SEN in each grand-aided school. These schools will also need to complete and review personal learning plans for each pupil with SEN which will then be transferred if and when a child moves between grant-aided schools.

In addition, the Act provides for increased cooperation between the EA and HSC Trusts in the provision of services that have been identified as being of benefit in addressing a child’s special educational needs.

However, while the SEND Act has come into operation, many of its sections have yet to be commenced in the absence of complementary SEN Regulations. Initially, sections 15, 16, 18 and 19 commenced in March 2016, followed by sections 6 and 1 in September 2016 and December 2020 respectively.

New draft SEN Regulations

Providing an enhanced legislative basis for delivering a responsive and effective SEN Framework, the new SEN Regulations are intended to support the Education (Northern Ireland) Order 1996 (the 1996 Order), as amended most recently by the 2016 Act.

Previously, in 2016, the Department of Education had consulted on new draft Regulations. However, given the delay, the collapse of the Northern Ireland Executive and the Covid-19 pandemic in the intervening years, as well as “significant improvements” to the new draft Regulations, the Department complete a second consultation.

Improvements to the new draft Regulations include comprehensive processes and timescales to be followed by the Education Authority, boards of governors, and health and social care authorities (including HSC Trusts) when undertaking their statutory duties of identifying and assessing if a child has, or potentially has, special educational needs, and to putting in place special education provision for those children who have SEN.

New SEN Code of Practice

The new SEN Code of Practice provides clarity on the the new draft SEN law and provides practical guidance for those identifying and assessing children who have, or potentially have, SEN, alongside those who provide special educational provision for children with SEN.

The summary report…

In December 2020, Section 1 of the SEND Act came into effect, requiring the Education Authority “so far as is reasonably practical, to seek and have regard to the views of the child”. Section 1 also requires that the Education Authority has regard to the importance of the child participating in decisions being supplied with the necessary information to facilitate participation in those decisions.

At that time, then Education Minister Peter Weir MLA asserted: “I am committed to improving the current system of special educational provision and to support pupils with special educational needs to meet their full potential.

“This new duty on the Education Authority will provide children with SEN the opportunity to participate in the decision-making process involving their education. I want to ensure that children have access to the necessary information and support to enable them to participate, and make their views known, in decisions relating to their future.”

“A recurring theme from several participants was that families with disabled children or those with SEN were the ‘forgotten ones’, particularly when it came to devising the response to Covid-19…”

National Children’s Bureau (NCB) in Northern Ireland

Requiring commencement orders, the outstanding provisions of the SEND Act can only come into effect once the new SEN Regulations and the Code of Practice are made by the Assembly.

The SEN Regulations and Code of Practice were open to a 22-week public consultation from 30 September 2020 to 2 March 2021. However, rather than wait for the conclusion of this consultation, the then Minister felt “it was in the best interests of children to implement this provision as soon as possible”.

Public consultation

After 22 weeks, the consultation on draft SEN Regulations received 207 responses, 186 via the NI Direct Citizen Space and 21 via email, while the Consultation on draft SEN Code of Practice attracted 212 responses, 178 via Citizen Space and 34 via email. This consultation was complemented by a targeted approach to obtain more detailed feedback from children and young people with SEN, as well as their parents/carers, on specific proposals.

Summary reports of the two consultations have now been published, though, as yet, the new SEN Framework has yet to be fully implemented.

In the meantime, a July 2021 report by National Children’s Bureau (NCB) in Northern Ireland has indicated that families of children with special educational needs and disabilities feel they had been “forgotten” amid the Covid-19 pandemic.

“A recurring theme from several participants was that families with disabled children or those with SEN were the ‘forgotten ones’, particularly when it came to devising the response to Covid-19 (and especially the lockdowns), the consequences of which were far-reaching for such families,” the report outlined.

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