Process for under 18s with SEND who are in, or leaving youth custody

Overview

This guidance relates to children under the age of 18. Responsibility for post-18s falls to the custodial establishment or, for those in the community, the Probation Service

Since 1 April 2015, laws and statutory guidance have been in place that apply to how young people with SEND are supported in youth custody. These changes were designed to improve how Surrey work with children, young people, and their families and to further joint working across agencies.

This guidance outlines the key requirements and sets out roles and responsibilities locally.

The SEND code of practice (sections 10:60 to 10:150) should be used for detailed guidance on the application of these duties in each case.

Relevant legislation

• Sections 70 to 75 of the Children and Families Act 2014, together with sections 28, 31, and 77 of the National Health Service Act 2006
• The Equality Act 2010
• Section 2 of the Chronically Sick and Disabled Persons Act 1970
• Section 17 of the Children Act 1989
• Section 39A of the Crime and Disorder Act 1998
• Section 562C of the Education Act 1996
• The Special Educational Needs and Disability (Detained Persons) Regulations 2015
• The Special Education Needs and Disability Regulations 2014
• The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (Part 3 and Schedule 3)
• Youth Justice Board Key Performance Indicators
• Youth Justice Board SEND Review Consultation 2022
• Surrey Youth Justice Plan

These specific provisions came into force from 1 April 2015.

This guidance is relevant for:

Local Authority (the home LA where the child ordinarily resides), Youth Justice Service (YJS), health service commissioners and those in charge of relevant youth accommodation/the custodial establishment.

Terminology

Cohort over the last three years

Underlying principles for SCC SEND process for detained persons

• Looking at the historical needs with the detained child and consulting with them regarding their aspirations and ensuring the child's voice is reflected.
• Timely identification and assessment of SEND and provision of high-quality support at the earliest opportunity whether the detained child has an EHC plan or not.
• Good communication between agencies, particularly Youth Justice Service (YJS), Special Educational Needs (SEN) teams, social care, health commissioners and those in charge of youth accommodation, with a focus on continuity of provision both on entering custody and on release from custody.
• Joint working by professionals around the detained child and appropriate person and to provide them with information, advice and support to enable them to participate.
• Joint working by professionals around the detained child and appropriate child by taking into account their views, wishes and feelings about the assessment.
• The child and their family are involved at all stages of the process where appropriate.

Surrey context

Surrey averages around four children a year who enter custody and six on remand in any one financial year.

Key duties for joint working by professionals and effective communication when a detained child has a SEN or has an EHC plan prior to detention:

• The Youth Justice Service and the custodial establishment must have regard for the SEND code of practice and must cooperate with the LA in relation to SEND.
• Each Surrey quadrant will have a Senior Case Manager (SCM) whose responsibility it is to lead on liaison with the Youth Justice Service.
  When a child enters custody the YJS Education Training Employment (ETE) Lead should inform the following people:
  • Assistant Director for Inclusion and Additional Needs
  • If school age, the child's school or College
  • If the child has an EHC plan, the Area SEN Manager, Area Senior Case Manager link/SEN link who will inform the SEN Case Officer.
  • Surrey Virtual School if the child is on Remand as they automatically become Child Looked After (CLA)
• The Manager of the relevant Quadrant SEND team or Quadrant Senior Case Manager will notify the allocated SEND Case worker.
• Where a detained child has an EHC plan, the quadrant SEND Case Worker (CW) must forward to the YJS ETE Lead the EHC plan, latest Annual Review and Communication Outline (if applicable) and this should be forwarded to the education link in the custodial establishment within 5 working days. This will be coordinated by the area YJS ETE Lead.
• The SEND CW must also notify the Designated Clinical officer of the child's detention. They will also be informed of the YJS ETE Lead's contact details.
• The custodial establishment undertakes an education assessment (using their own assessment tool) for all detained children admitted, leading to an Individual Learning Plan (ILP). This ILP must take account of any SEND identified through their assessment and any information supplied by the LA.
• Where a child does not have an EHC plan, the Youth Justice Service will consider along with the custodial establishment if there are any unmet SEND needs.
• The relevant health service commissioner(s) for the custodial establishment must arrange any health provision specified in the EHC plan for the detained child's health needs. The EHC plan will need to feed into the health needs assessment undertaken when a child enters custody. The assessment used by the custodial establishments is made using the Comprehensive Health Assessment Tool (CHAT) that leads to an individual health care plan (IHCP).
• The SEND Case Officer should advise the social worker when a detained child with an EHC plan has a social care need specified in the EHC plan.
• Social care must give consideration to whether social care needs specified in the EHC plan continue in custody. There are specific duties to children in care who go into custody. A detained child remanded to custody becomes a detained child in care.
• The YJS ETE Lead and professional network must monitor any special educational provision specified in the EHC plan, or as close to it as possible, while the detained child is in custody and after release from custody and initiate challenge if not complied with.
• Where a detained child has an EHC plan when they enter youth custody, the relevant SEND CW/ team will continue to maintain the EHC plan whilst the detained child is in custody and after release from custody.
  When a child is due to be released the YJS ETE Lead must notify the following:
  • Assistant Director for Inclusion and Additional Needs
  • If school age, the child's school or College
  • If the child has an EHC plan, the Area SEND Manager, Area Senior Case Manager link/ SEN link who will inform the SEND Case Officer.
  • Surrey Virtual School if the child is on Remand as they automatically become CLA
• The EHC plan must be reviewed immediately before or on release – this is the responsibility of the SEND CW with support from the Youth Justice Service.
• The key contact between the relevant SEND CW/ team and the custodial establishment will be provided by the Youth Justice Service. The quadrant SEND CW/ team will talk directly to the education provider in the custodial establishment in relation to the EHC plan or a request for EHC assessment and the SEND process as required by the YJS ETE Lead. All communications will also involve the Youth Justice Service.
• The Youth Justice Service must notify LA (SEND CW) when a detained child with an EHC plan is transferred between custodial establishments. The SEND CW will then send the EHC plan to the new custodial establishment, within 5 working days.
• The Youth Justice Service must notify both local authority SEND teams in instances where a detained child with an EHC plan is in care to Surrey County Council and living out of area on going into custody.

Process for those in youth custody known to have additional needs and/ or an existing EHC plan

The information below is also available to view as the Process for those in youth custody known to have additional needs and/ or an existing EHC plan flowchart (PDF).

Requesting an EHC plan whilst the detained child is in custody (that is, does not have an EHC plan before detention and may require an EHC plan on release from custody)

The aim is to ensure that once an EHC plan is issued whilst the child is in detention, the provision set out in an EHC plan is made available whilst the child remains in custody and that there is timely planning to meet the needs of the child on release.

1. The child's parents, the child, the person in charge of education at the custodial establishment, the Youth Justice Service or anyone else, may request an EHC needs assessment while the detained child is in custody.
2. The request should be made to the Learners Single Point of Access where the custodial establishment is based so that they can consider the request and make a decision on whether an EHC plan assessment is necessary.
3. Where an EHC needs assessment is agreed the SEND CW will notify:
   • The child's parents and the young child
   • The child in charge of the custodial establishment
   • The YJS ETE Lead
   • The home area health providers
   • Virtual School where appropriate
   • The health care commissioners who provide health services to the custodial establishment where the child is detained and will be assessed
   • Social care
   • The school, Short Stay School or college where the child is on roll
   • Other relevant partners e.g. Designated Clinical Officer (DCO)

   The SEN CW will make arrangements for the assessment to be undertaken in line with Surrey County Council's SEND Business Processes. The process will be completed within 20 week. (See Surrey County Council's SEND Business Process for guidance on the EHC assessment process). This will be alongside the Youth Justice Service with the process on an individually identified basis eg a review meeting or a separate professionals meeting. It will focus on a conversation involving the child.

4. Having undertaken an EHC assessment, if the EHC plan includes health care provision this should be arranged by the relevant health service commissioners for the custodial establishment. Similarly, where the EHC Plan includes social care provision the SEND Case Officer should advise the social worker so that consideration can be given to how social care needs may be met.
5. The LA must complete any EHC plan underway on entry to or exit from custody.
6. If the detained child moves to another LA on release before the completion of the EHC needs assessment, the new LA should consider whether it needs to carry out an EHC needs assessment itself.
7. Where a child is issued an EHC plan whilst in custody, the Youth Justice Service and youth accommodation provider will be key members of the team around the detained child for reviewing EHC plans while in custody.
8. The SEND CW/team will maintain and review it as soon as possible after the CYP is released.

The key contact between the SEND CW/team and the custodial establishment will be provided by the YJS ETE Lead. The relevant SEND CW/team will talk directly to the education provider in the custodial establishment in relation to the EHC plan or a request for EHC assessment and the SEND process, in partnership with the Youth Justice Service.

Maintaining an EHC plan for a Detained Child

Where a detained child has an EHC plan at the time of entering custody or where an EHC plan is finalised in custody the LA must keep the plan whilst the detailed child is in custody and must arranged the appropriate special educational provision.

The SEND team will:

• Arrange the special educational provision specified in the EHC plan which will be delivered by an educational provider under the contractual arrangements with the Youth Justice Board.
• Where it is not practical to deliver the exact provision set out in the EHC plan the LA must arrange provision as close as possible to it and work with the relevant youth accommodation and education provider.
• Where the special education provision is no longer appropriate the LA must arrange special educational provision that is appropriate for the detained child seeking advice from the Key Worker, the YJS ETE Lead and the relevant youth accommodation and education providers.
• Speech and Language therapy specified in Section F of the EHC plan must be arranged by the LA working with NHS England and SALT providers who are contracted and funded centrally by NHS England. In many circumstances the youth accommodation has SALT providers available, and this will be the first point of contact.

Monitoring Provision

• The LA must not amend the EHC plan, carry out a re-assessment or cease to maintain the EHC plan. (10.122 of the Code of Practice)
• The LA must monitor progress toward the detained child's outcomes whilst in custody.
• Where a child is in custody within a year of the last review the LA should conduct a monitoring meeting and continue to do so every 12 months. The monitoring meeting should consider the special education and health provision arranged for the detailed child in custody and the appropriateness of provision.
• The LA can request the person in charge of education at the relevant youth accommodation convene the monitoring meeting.
• The monitoring meeting will be attended by a SEND Case Officer and the YJS ETE Lead. No changes can be made to the EHC plan following the monitoring meeting. The papers from the monitoring meeting will be kept on file for incorporation into the EHC plan when a formal annual review is held just prior to/on release from custody.

Annual Review

• The detained child's EHC plan must be reviewed just prior to release or as soon as possible on release.
• Usual annual review process to be followed at this point. Draft EHC plan to be updated including the annual review paperwork and any relevant monitoring visit paperwork.
• The SEND team will work with the YJS ETE Lead on the plans for the release of a detained child to ensure educational provision is put in place without delay.

Monitoring

• Children who offend and are in custody (in NCY11 under) will be monitored through the Quadrant Area Case Review and Area Action Group (ACRAG) meetings.
• Responsibility for post-18s falls to the custodial establishment or, for those in the community, the Probation Service