Looked after children have the same rights as every child to be healthy, remain safe, enjoy and achieve, make a positive contribution to society and achieve economic well-being.
The educational achievement of looked after children remains lower than their peers and as a result the Children Act 1989 (as amended by the Children Act 2004) places a duty on local authorities to promote the educational requirements of looked after children, including those placed out-of-authority. For example, local authority should monitor and identify additional support to promote the educational progress of their looked after children placed out of authority. Local authorities may also request help from one another and from health bodies in other local areas to fulfil their function in respect of the children for whom they are responsible. The detailed arrangements in place for discharging the duty will depend on local structures and Children and Young people’s Care Plans.
Discharging the duty on a day-to day basis means that the local authority should at least do what any good parent would do to promote their child’s educational aspirations and support their educational achievements.
The information below explores the duties placed on Local Authorities in relation to the education of a looked after child. This is not a definitive statement of the law around education of looked after children however and users also should refer to government advice and guidance or seek legal advice for specific issues. We have put a list of useful resources at the end of this item.
When a child of school age comes into care, the local authority should do everything possible to minimise disruption in the child’s education. Children in Key Stage 4 (year 10 and 11) everything possible should be done to maintain the child in the existing school and only in exceptional circumstances should the child move school. Subject to age and understanding, the child’s views and wishes should be taken into account.
Where it is not possible to maintain an existing educational placement the care placement should be made at the same time as a new educational placement unless the child is at serious risk and requires immediate protection. The care placement must be able to support the educational needs and aspirations of the child. If a placement is made in an emergency then a new educational placement should be made within 20 school days.
The admission requirements for looked after children are set out in the School Admissions Code. This states that Looked after children should be given the highest priority within school admission arrangements. This Code applies to maintained schools and academies, including free schools
When a child becomes looked after his/her social worker must ensure that the child’s needs and the services to meet these are documented in the Care Plan. The Care Plan – of which the PEP is an integral part – is made before the child becomes looked after or in the case of an emergency placement within 10 working days.
The PEP is a record of what needs to happen for looked after children to enable them to fulfil their potential and reflects any existing education plans, such as a statement of special educational needs, Individual Education Plan (IEP) or Provision Mapping. The PEP should reflect the importance of a personalised approach to learning which secures good basic skills, stretches aspirations and builds life chances.
The PEP is the joint responsibility of the local authority and the school.
The content of a PEP
The statutory guidance on promoting the education of looked after children requires that a range of educational and developmental needs are covered in a PEP. These include:
- access to a nursery or other high quality early years provision that is appropriate to the child’s age and meets their identified developmental needs
- on-going catch-up support for those who have fallen behind with school work
- provision of immediate suitable education where a child is not in school
- transition support needs where needed, such as when a child begins to attend a new school or returns to school or when a child has a plan for permanence and may change schools as part of that plan;
- support needed to help the child realise their short and long-term academic achievements and aspirations. This includes:
- support to achieve expected levels of progress for the relevant national curriculum key stage and to complete an appropriate range of approved qualifications
- careers advice and guidance and financial information about further and higher education, training and employment
- out-of-school hours learning activities, study support and leisure interests
- school attendance and, where appropriate, behaviour support
Review of the PEP
A PEP must be reviewed regularly as part of the looked after child (LAC) review. The review process enables information to be shared by others including the child’s parents, carers, school and other professionals in order to have a comprehensive view of the child’s situation.
The Children and Families Act 2014 included a provision which requires Local Authorities to appoint at least one person who is tasked with promoting the educational achievement of all the children looked after by the local authority they work for, including children placed out of authority. This can be found in Section 99 of the Children and Families Act 2014.
It is the role of the VSH to ensure that there are effective systems in place to:
- maintain an up-to-date roll of its looked after children who are in school or college settings and gather information about their education placement, attendance and educational progress
- inform headteachers and designated teachers in schools if they have a child on roll who is looked after by the VSH’s local authority
- ensure social workers, designated teachers and schools, carers and IROs understand their role and responsibilities in initiating, developing, reviewing and updating the child’s PEP and how they help meet the needs identified in that PEP
- ensure up-to-date, effective and high quality PEPs that focus on educational outcomes and that all looked after children, wherever they are placed, have such a PEP
- ensure the educational achievement of children looked-after by the authority is seen as a priority by everyone who has responsibilities for promoting their welfare
- report regularly on the attainment of looked after children through the authority’s corporate parenting structures
- VSHs, working with education settings, should implement pupil premium arrangements for looked after children
Looked after children are regarded as one of the most vulnerable groups of children in society. As such, it is of paramount importance that a school place is found that meets the child’s educational needs as soon as possible. All schools must have oversubscription criteria for each ‘relevant age group’ and the highest priority must be given, unless otherwise provided in this Code, to looked after children. This is contained in section 1.7 of the school admissions code.
The Virtual School Head (VSH) must ensure that:
- the admission authorities are aware that looked after children are ‘excepted pupils’ from the infant class size limit
- the local authority, as a corporate parent, should not delay where a looked after child is without an education placement that is appropriate to their assessed needs.
The social worker involved with the looked after child should consult with the VSH on an appropriate education placement for the looked after child. If social workers are unsure about how school admissions work in relation to looked after children they should discuss this with the VSH.
Local authorities and schools must have regard to the statutory guidance on exclusions from maintained schools, academies and pupil referral units.
Looked after children as a collective have disproportionately high rates of exclusion. They are particularly vulnerable to the impacts of an exclusion. The head teacher should, as far as possible, avoid permanently excluding a looked after child. Schools should proactively cooperate with the child’s carers, social worker and local authority that looks after the child. If a school has concerns that a looked after child is at risk of exclusion, they should consider whether the provision of additional support would help or if an alternative educational placement is required.
In the case where a looked after child is excluded, anyone who is seen as a parent has the right to make representations and appeal. This includes the local authority where they have a care order in respect of the child and any person with whom the child lives.
No looked after child should be excluded from a school/Pupil Referral Unit without discussion with the local authority to ensure that there is suitable alternative provision available elsewhere. In the event of a child being permanently excluded from school the local authority has a duty to provide full time alternative education from the sixth day following the exclusion. In the case of a looked after child it is recommended that such provision should be in place from the first day following the exclusion.
Around 70% of looked after children have some form of SEN. Special Educational Needs and Disabilities departments should work closely with the VSH as well as social workers to ensure that local authorities have effective and joined-up processes for meeting the SEN of looked after children.
The VSH has certain duties and responsibilities towards looked after children with a statement of needs or an Education, Health and Care Plan (EHCP). They must ensure that:
- the SEN code of practice, as it relates to looked after children, is adhered to; and
- the child’s statement or EHCP works in harmony with the child’s care plan.
A significant amount of children may be undiagnosed when they begin to be looked after. During the process of putting a PEP in place for looked after children, the local authority should ensure that any undiagnosed special needs are addressed as soon as possible if they are identified through this process.
Local authorities should be particularly aware of the need to avoid any delays for looked after children and carry out the EHC needs assessment in the shortest possible timescale. Addressing a looked after child’s special educational needs will be a crucial part of avoiding breakdown in their care placement.
The Children Act 1989 requires that a pathway plan is prepared for all eligible children. Eligible children are looked-after, aged 16 or 17 and have been looked after by a local authority for a period of 13 weeks, or periods amounting in total to 13 weeks, which began after they reached 14 and ended after they reached 16.
Local Authorities have a duty to ensure that:
- the child’s PEP is maintained. It is a statutory requirement that all eligible children have a pathway plan. The PEP should form a part of the initiation and review of the pathway plan.
- the pathway plan helps the child prepare for when they are to transition from being looked after to living independently, paying particular consideration to the young person’s education or training and how they are able to access all the services needed to prepare for training, further or higher education or employment
- that care leavers are supported to find further education college (FE) and higher education (HE) establishments that meet the needs of the looked after child or care leaver.
- every eligible child is aware and receives the 16-19 Bursary Fund.
Updated statutory guidance has imposed requirements on the local authority to promote the educational achievement of previously looked after children.
New statutory guidance has been published in line with the enactment of the Children and Social Work Act 2017. The Act expanded the duties of the local authority to promote the education children who previously had looked after status but no longer do so.
In relation to previously looked-after children, the role of the VSH is limited in comparison to their duty in relation to looked-after children given that they are no longer the child’s ‘’corporate parent’’. However, VSH’s must ensure that they provide suitable advice and information in order to promote their educational achievement. They can also undertake any activity they consider appropriate where that activity will promote the educational achievement of such children in their area.
Special Educational Needs and Disability (SEN/D)
Section 20 Children and Families Act 2014 defines a child as having Special Educational Needs (SEN) if he or she “has a learning difficulty or disability which calls for special education provision to be made for him or her”.
A child is considered to have a learning difficulty if she or he:
- has a significantly greater difficulty in learning than the majority of others of the same age; or
- has a disability which prevents or hinders them from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post 16 institutions.
In the Equality Act 2010 a person is classed as disabled if they have a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.
- Normal day-to-day means things that people do on a regular basis, for example mobility, dressing or cleaning (physical co-ordination), and having a conversation.
- Long-term usually means the impairment should have lasted or be expected to last at least a year.
- Substantial means not minor or trivial.
- Physical impairment includes sensory difficulties such as visual or hearing impairments
- Mental impairment includes learning difficulties, autism, dyslexia, speech and language difficulties, attention deficit hyperactivity disorder (ADHD).
- Some specified medical conditions, such as HIV, multiple sclerosis and cancer are all considered as disabilities, regardless of their effect.
Children in care are nine times more likely to have special educational needs (SEN) than other children, according to the charity `The Who Cares? Trust` (Now known as Become) Children with SEN often find it more difficult to cope within the educational environment than their peers and it can hinder their ability to learn. It is vital therefore that foster carers have an understanding of how to identify and access the support required for the children that come into their care.
What you can do as a foster carer:
- Understand the types of SEN
SEN can come in many different forms, and can refer to a child with social, emotional and mental health difficulties, a child with learning difficulties, communication and interaction needs sensory and/or physical disabilities and needs.
- Know how to identify it
Signs may vary, but SEN can be “specific as well as wide-ranging”. A child may have difficulty with one area of learning – such as letters or numbers – but show no other signs of struggling with their education. Alternatively, they might have problems in relation to children or adults, but not display other difficulties.
- Raise your concerns
If you think the child in your care may have some form of SEN, raise concerns with professionals quickly. It’s important that it is professionally diagnosed so they can get appropriate support.
- Know your authority’s ‘local offer’
Each local authority has to publish a ‘local offer’, which sets out support available for children and young people (0 to 25) with special needs and disabilities in the local area. Foster carers, you will be able to use the guide to find out whether there are additional support services in the area, which could benefit the child in your care.
- Request an Education, Health and Care assessment if necessary
Education, Health and Care (EHC) plans have replaced SEN statements as the way of ensuring support for children with SEN.
You, the child (if he or she is aged between 16-25), the child’s social worker, a teacher and any other professional who thinks the child might have SEN can request an assessment.
If you and the social worker disagree over the need for an assessment, speak to the Independent Reviewing Officer (IRO).
- Plan for transitions
At 16, children can stay in school, move on to college or pursue apprenticeships. If your child has an EHC plan, they will receive support until they are 25.
However, wherever they move on to from school should be planned “well in advance”, so the child knows their options and can make an informed decision
- Know where you can get your support from
It’s important to remember you’re not on your own. A child’s teacher and school special educational needs coordinater (SENCO) should keep you informed of what the needs of the child are.
Social workers can help you with practical things, like arranging meetings. External agencies are also available, such as child and adolescent mental health professionals, speech and language therapists and occupational therapists.
Caring for a child with SEN can be stressful, it can be demanding on both your energy levels and time.“Your desire to ‘always do the right thing’ for the child may occasionally be in conflict of your own needs to relax,” don’t forget that time to relax and unwind is “vital”.
Special educational provision is provision that is different from or additional to that normally available to pupils or students of the same age, which is designed to help children and young people with SEN or disabilities to access the National Curriculum at school or to study at college.
For children under 2 years old it is educational provision of any kind.
Additional SEN Support
If a child is identified as struggling with their school work, and it is determined that this is being caused by a child’s underlying SEN, it may be necessary for a school to intervene to provide additional support for that child.
This support should be provided through a process known as ‘Additional SEN Support’. This is designed to help remove any barriers the child has to learning and put in place provision that will enable that child to benefit fully from their education.
This support should be provided through a continuously repeated 4-part cycle known as the ‘graduated approach’, revisiting and reappraising the support, and concentrating on what works best for the child. In this way, the support should become more refined and specialised over time, to ensure that the child continues to make good progress at school and that the desired outcomes are reached.
Education, Health and Care Plans (EHCPs)
If a child fails to make progress at the Additional SEN Support stage, a request can be made to the Local Authority, by either the parents or the child’s school, for them to carry out an Education, Health and Care needs assessment. This would be with a view to the child being placed on an EHCP.
The purpose of an EHCP is:
- to make special educational provision to the meet the SEN of the child or young person;
- so as to secure the best possible outcomes for them across education, health and social care, and
- to prepare them for adulthood, as they grow older.
Under paragraph 9.2 of the “Special educational needs and disability code of practice: 0 to 25 years“, the assessment and EHCP, if granted, should:
- establish and record the views, interests and aspirations of the parents and child or young person;
- provide a full description of the child or young person’s SEN and any health and social care needs;
- establish outcomes across education, health and social care based on the child or young person’s needs and aspirations;
- specify the provision required and how education, health and care services will work together to meet the child or young person’s needs and support the achievement of the agreed outcomes.
An EHCP is legally binding – the support detailed in the Plan must be provided. These Plans can be in place for children or young people between birth and the age of 25. Young people aged 18-25 with an EHCP will continue to have their needs reviewed on at least an annual basis, to ensure the right level of support is being provided across the areas of education, health and social care.
An EHCP is legally binding and the support detailed in the plan must be provided.
Additional SEN Support and EHCPs were implemented as a result of Part 3 Children and Families Act 2014 and have been in place since 1 September 2014. Prior to this date, many children will have received support through different mechanisms.
Some children may have been receiving support through ‘School Action’ or ‘School Action Plus’. These support arrangements have now been replaced with ‘Additional SEN Support’. If your child was receiving support through ‘School Action’ or ‘School Action Plus’ before the changes, they should automatically have been moved onto ‘Additional SEN Support’. If you have doubts about whether this has happened, you should discuss this with your child’s school’s SENCO.
If your child currently receives support through a Statement of Special Education Needs (SSEN), these remain legally binding and the child’s support should not be removed. From 1 September 2014, no new requests for SSENs have been accepted, the appropriate application being for an EHCP.
The government intends for all children with SSENs to transition to EHCPs by 1 April 2018. This transition will take place via a ‘transfer review’, replacing the annual review in the year of transition. Local Authorities should seek to transfer those already on SSENs to EHCPs at key transition points in their education, for example:
- children transferring from an early years setting to a school;
- children transferring from an infant to a junior school;
- children transferring from primary to secondary school;
- children transferring from mainstream to a specialist school, or vice versa;
- children in Year 9 (in line with the requirement under EHCPs for adulthood to be prepared for from Year 9 onwards);
- children in Year 11;
- children moving to further education.
If the person receiving support is a young person, i.e. over 16, and they currently receive SEN support through a Learning Difficulty Assessment (LDA), they will also at some stage transition across to an EHCP, unless the LDA comes to an end before the date for transition. The transition phase for those on LDAs will last until 1 September 2016. Until a young person has transferred to an EHCP, they should continue to receive support through their LDA.
For those who already have a request for Statutory Assessments for SSENs on-going, the Local Authority could still issue a SSEN, though the Local Authority may seek parental consent to issue an EHCP instead.
If a parent has an ongoing request for a SSEN that is refused, or is having problems with an existing SSEN, they will still be able to appeal to the First Tier Tribunal (Special Educational Needs & Disabilities) to try and resolve these issues.
From 1 September 2014, all Local Authorities must publish a detailed summary of the services available to support children and young people with SEN and disabilities named the ‘Local Offer’. This should cover services for education, health and social care and should include information about services available in neighbouring boroughs. The SEND Code of Practice sets out in detail what the Local Offer should do:
- provide clear, comprehensive, accessible and up-to-date information about the available provision and how to access it;
- target provision specifically to meet local needs and aspirations.
Local Authorities should involve children and young people with SEN and disabilities and their parents and service providers im developing and reviewing the Local Offer.
Schedule 2 Special Educational Needs and Disability Regulations 2014 provides a common framework for the Local Offer.
The Local Offer must include information about:
- special educational, health and social care provision for children and young people with SEN or disabilities (including online and blended learning);
- details of how parents and young people can request an assessment for an EHCP;
- arrangements for identifying and assessing children and young people’s SEN – this should include arrangements for EHC needs assessments;
- other educational provision, for example sports or arts provision, paired reading schemes;
- post-16 education and training provision;
- apprenticeships, traineeships and supported internships;
- information about provision to assist in preparing children and young people for adulthood;
- arrangements for travel to and from schools, post-16 institutions and early years providers;
- support to help children and young people move between phases of education (for example from early years to school, from primary to secondary);
- sources of information, advice and support in the Local Authority’s area relating to SEN and disabilities including information and advice provided under Section 32 Children and Families Act 2014, forums for parents and carers and support groups;
- childcare, including suitable provision for disabled children and those with SEN;
- leisure activities;
- support available to young people in higher education, particularly the Disabled Students Allowance (DSA) and the process and timescales for making an application for DSA;
- arrangements for resolving disagreements and for mediation, and details about making complaints;
- parents’ and young people’s rights to appeal a decision of the Local Authority to the First-tier Tribunal (SEN & Disability) in respect of SEN and provision;
- the Local Authority’s accessibility strategy (under Equality Act 2010, Schedule 10, paragraph 1);
- institutions approved under Section 41 Children and Families Act 2014.
The Local Offer should cover:
- support available to all children and young people with SEN or disabilities from universal services such as schools and GPs;
- targeted services for children and young people with SEN or disabilities who require additional short-term support over and above that provided routinely as part of universal services;
- specialist services for children and young people with SEN or disabilities who require specialised, longer term support.
Some young people will cease to be looked after at 16 or 17 and others will continue to be looked after until their 18th birthday. (Some care leavers will remain living with their former foster carers past their 18th birthday in ‘Staying Put’ arrangements, but they are no longer looked after).
Local authorities continue to have responsibilities to provide a Personal Adviser and to prepare a Pathway Plan. The Personal Adviser is there to ensure that care leavers are provided with the right kind of personal support, for example by signposting them to services and providing advice. The Pathway Plan plots transition from care to adulthood for care leavers up to the age of 25 if they remain in education and/or training or are not in employment, education or training and plan to return to education and/or training. In reviewing their arrangements for EHC needs assessment and EHC plan development local authorities should ensure good advanced planning involving the young person and Personal Adviser.
Where a child or young person being educated out of the local authority’s area is brought to the local authority’s attention as potentially having SEN, the home local authority (where the child normally lives) should decide whether to assess the child or young person and decide whether an EHC plan is required.
Where a child or young person being educated out of area has an EHC plan, the home local authority must ensure that the special educational provision set out in the plan is being made. They must review the EHC plan annually. Local authorities can make reciprocal arrangements to carry out these duties on each other’s behalf.
If the child or young person is placed by a local authority at an independent special school, non-maintained special school or independent specialist provider, the local authority must pay the appropriate costs.
If it is a residential placement, so far as reasonably practicable, those placing the child or young person should try to secure a placement that is near to the child’s home. However, in making this decision they should ensure they have full regard for the views, wishes and feelings of the child or young person and their families about the placement. Where the local authority names a residential provision at some distance from the family’s home the local authority must provide reasonable transport or travel assistance.
Under section 7 of the Education Act 1996 parents have the right to educate children, including children with SEN, at home. Home education must be suitable to the child’s age, ability, aptitude and SEN. Local authorities should work in partnership with, and support, parents to ensure that the SEN of these children are met where the local authority already knows the children have SEN or the parents have drawn the children’s special needs to the authority’s attention. Local authorities do not have a duty under section 22 of the Children and Families Act 2014 to assess every home educated child to see whether or not they have SEN. The high needs block of the Dedicated Schools Grant is intended to fund provision for all relevant children and young people in the authority’s area, including home educated children. Local authorities should fund the SEN needs of home educated children where it is appropriate to do so.
Where education is arranged elsewhere than at a school it is commonly referred to as alternative provision. Alternative provision includes pupil referral units, alternative provision academies and alternative provision free schools. Local authorities must have regard to statutory guidance on alternative provision and on the education of children unable to attend school because of health needs. This guidance specifies that the education provided should be on par with mainstream schools.
The education they receive should be good quality and prevent them from slipping behind their peers. It should involve suitably qualified staff who can help pupils progress and enable them to successfully reintegrate back into school as soon as possible.
When a child or young person with an EHC plan is admitted to hospital, the local authority that maintains the plan should be informed so that they can ensure the provision set out in the plan continues to be provided. If necessary, the EHC plan may be reviewed and amended to ensure it remains appropriate and the child’s SEN continue to be met.
Where children or young people with health needs are returning to mainstream education then the local authority should work with them, their family, the current education provider and the new school or post -16 provider to produce a reintegration plan. This will help ensure that their educational, health and social care needs continue to be met. Where relevant, a reintegration plan should be linked to a child or young person’s EHC plan or individual healthcare plan.
It is important that medical commissioners and local authorities work together to minimise the disruption to children and young people’s education. In order for local authorities to meet their duties, medical commissioners should notify them as soon as possible about any need to arrange education, ideally in advance of the hospital placement. For example, where a child of compulsory school age is normally resident in a local authority but is receiving medical treatment elsewhere, it is still the duty of the ‘home’ local authority to arrange suitable education if it would not otherwise be received.
The Department for Education has released a SEND Guide for Parents and Carers.
and a complaints guide for young people Send complaints: Guide for young people aged 16 to 25.
Lawstuff is run by Coram Children’s Legal Centre and provides advice both online and over the phone. https://lawstuff.org.uk/
SENDirect is provided by Contact, the charity for families with disabled children. It helps families of children with special educational needs or disabilities to find the activities and support that suit their interests, preferences, lifestyle and budgets easily.
The Special Needs Jungle have produced the following flow charts in conjunction with the Department for Education to help parents and carers understand the process and what happens next for a child that requires support: https://specialneedsjungle.com/
SEN Support in Schools SNJ-DFE-SEN-SUPPORT-FLOW-CHART-1.1
Requesting an Education, Health, Care assessment SNJ-DfE-FLOW-CHART2.1-EHCP-request-
Conducting an Education, Health, Care assessment SNJ-DfE-FLOW-CHART3-EHCP-assess
If you disagree with the decision SNJ-DfE-FLOW-CHART4.1-EHCP-disagree
Glossary of Terms Regarding SEN/D
Clinical Commissioning Group (CCG): group of professionals that work together to commission services, ensuring there is sufficient capacity contracted to deliver necessary services to people.
Independent supporter: person recruited by a voluntary or community sector organisation to help families going through an EHC needs assessment and the process of developing an EHC plan. This person is independent of the local authority and will receive training, including legal training, to enable them to provide this support.
Keyworker: person providing single point of contact to young people and parents/carers to ensure the support received is co-ordinated.
Mainstream school: primary or secondary school providing education for all children.
Parent Carer Forum: representative local group of parents and carers of disabled children who work with local authorities, education, health and other providers to make sure the services they plan and deliver meet the needs of disabled children and families.
Reasonable adjustments: changes schools and other settings are required to make; for example creating ramps for children to enter classrooms or provision of extra support and aids such as specialist teachers or equipment.
Special Educational Needs Co-ordinator (SENCO): a qualified teacher in a school or nursery who has responsibility for co-ordinating the special educational needs provision.
Statutory Guidance: local authorities and other local bodies have a legal duty to follow the guidance.