CCGs responsible for Special Educational Needs commissioning

CCGs will have a duty to carry out Special Educational Needs (SEN) commissioning from September 2014.

Paragraph 41 of the "Everyone Counts: planning for patients 2014/15" states:
"With CCGs assuming responsibility for Special Educational Needs commissioning from September 2014, they will need to work closely with local authorities and schools to meet the wider pledge for better health outcomes for children and young people".

But where does this duty come from?  And what is the extent and nature of this duty for CCGs?

A CCG will have a joint responsibility, with the local authority, for making commissioning arrangements relating to educational, health and care needs as a result of the implementation of the Children and Families Bill (which is due to come into force in September 2014).

Section 26 of the Bill places a new statutory duty on CCGs to make "joint commissioning arrangements" with local authorities in respect of the education, health and care provision to be secured for children (for whom the CCG is responsible under section 3 of the NHS Act 2006) who have special educational needs. Section 26 sits within Part 3 of the Bill, which comprises sections 19-73.

Section 67 of the Bill imposes an obligation on the Secretary of State to issue a code of practice giving guidance about the exercise of functions under Part 3 of the Bill to CCGs. CCGs are obliged to have regard to the code in exercising their functions under Part 3. The Department of Health is currently analysing consultation responses before publishing this guidance.

So what does the draft Children and Families Bill say CCGs have to do?

Duty to notify a local authority of suspected special educational needs

Section 24 of the Bill places a duty on CCGs to bring children under compulsory school age to the attention of a local authority where (in the course of exercising its functions in relation to such a child) it forms the opinion that the child has, or probably has special educational needs.

However, before informing the local authority, the CCG must inform the child's parent of their duty to inform the local authority and give the child's parent an opportunity to discuss their opinion with an officer of the group.

In addition, under section 24, if the CCG believes that a particular voluntary organisation is likely to be able to give the parent advice or assistance in connection with any special educational needs, it must inform the parent of that.

Duty to make "joint commissioning arrangements"

Section 26 of the Bill obliges a local authority and its partner CCG to make "joint commissioning arrangements" about the education, health and care provision to be secured for children and young people with special educational needs.

These joint commissioning arrangements must include arrangements for considering and agreeing the following:

1. The education, health and care provision reasonably required by the learning difficulties and disabilities which result in the children and young people concerned having special educational needs. 
   As part of this, the local authority and CCG must make arrangements for: securing Education Health Care (EHC) needs assessments; securing the educational, health and care provision specified in the EHC plans, and agree personal budgets (described in section 49 of the Bill).
2. What education, health and care provision is to be secured.
3. By whom education, health and care provision is to be secured.
4. What advice and information is to be provided about education, health and care provision.
5. By whom, to whom, and how such advice and information is to be provided.
6. How complaints about education, health and care provision may be made and are to be dealt with.
7. Procedures for ensuring that disputes between the parties to the joint commissioning arrangements are resolved as quickly as possible.

The joint commissioning arrangements may also include other provisions.
Both the CCG and the local authority will be under a duty to have regard to the "joint commissioning arrangements" in exercising their functions, and both will be under a duty to keep the arrangements under review.

Duty to co-operate

Section 28 obliges a CCG to cooperate with the local authority, and vice versa, in the exercise of the local authority's functions under Part 3 of the Bill.

Section 31 asserts that a CCG must comply with a local authority's request to co-operate under Part 3 unless it considers that doing so would (a) be incompatible with its own duties; or (b) otherwise have an adverse effect on the exercise of its functions. If a CCG decides not to comply with a request by the local authority to co-operate under Part 3, then the CCG must give the local authority written reasons for the decision. 

Summary

The provisions envisaged by the Children and Families Bill emphasise and propagate the current integration agenda. Joint working will no longer simply be encouraged – in the area of Special Educational Needs for children and young people, putting in place joint commissioning arrangements will be a statutory requirement.