The SEN regime for children and young persons in detention

The provisions governing SEN and the EHC plan process in the 2014 Act do not apply to anyone who is detained, i.e. in prison. Instead, sections 70-75 of the Act made separate provision for “detained persons”, i.e. those aged 18 or under (but not those aged 19-25) who are subject to a detention order and detained in relevant youth accommodation. These provisions, together with the Special Educational Needs and Disability (Detained Persons) Regulations 2015 and a revised version of the Code of Practice with additions dealing with this subject, came into force on 1 April 2015.

These provisions are complex and shortly after they came out I prepared a detailed briefing note which attempted to explain them in a way that was easier to understand. That note is on the 'Resources' page of this website and a summary is below. It is unclear how often (if at all) these provisions are applied in practice but there can be no doubt that children and young people who have SEN and are in detention are particularly vulnerable.

The separate regime for those aged 18 and under in detention is intended to mirror as far as possible the 'ordinary' SEN/EHC plan provisions and can be summarised as follows:

(1) The ordinary regime which applies to 0-25 year olds does not apply to anyone detained in the criminal justice system.

(2) The detention regime applies to those aged 18 or under detained in a Youth Offender Institution, a Secure Training Centre or a Secure Children’s Home.

(3) The body with principal responsibility under this regime is the “home authority”, i.e. the local authority where the detained person is ordinarily resident or (if applicable) the local authority which is, or was, looking after him.

(4) Where a detained person has an EHC plan, this must be kept by the home authority who must also arrange the SEP specified in it whilst he is in detention. If this is not practicable, then educational provision which corresponds as closely as possible to it must be arranged. If the SEP in the plan no longer appears appropriate, then such SEP as does appear appropriate must be arranged.

(5) A statutory assessment which was underway before the detained person was detained must be completed. A statutory assessment commenced whilst a detained person is detained must be completed following release if the detained person is released to his home authority; if he is released to another local authority, that new authority should consider carefully whether to do a statutory assessment of its own.

(6) Requests for statutory assessments can be made by the parent of a detained person who is a child or by the detained person himself if he is 18, or by the person in charge of where he is detained. Anyone can bring a detained person to the attention of the home authority as someone who has or may have special educational needs.

(7) Where a request for a statutory assessment is made or a detained person is brought or comes to the attention of the home authority, it must decide whether to do a statutory assessment and, if it does, whether to issue an EHC plan in a very similar way to under the ordinary regime.

(8) The home authority must ensure a detained person’s EHC plan continues to be reviewed annually and must help plan for his release. An EHC plan must be reviewed as soon as practicable following release.

(9) The parent of a detained person who is a child or a detained person who is 18 can appeal to the FTT against a decision not to do a statutory assessment, a decision not to do an EHC plan after a statutory assessment, or the school/institution named in an EHC plan (but not the description of SEN or SEP in an EHC plan).

Paul Greatorex