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An introduction for Parents to law and procedure
Having a child with special educational needs (SEN) can be very isolating. Sometimes parents don't know where to turn. There is a fog of misinformation, some even coming from school professionals and local authority officers who may genuinely believe that SEN entitlement is a matter of local policy and practice. Parents are commonly told, for example, that
- their pre-school child is too young for consideration,
- their child does not meet the authority's criteria for help,
- other children's needs are greater,
- the school should be able to cope,
- authorities only have to deal with children in state schools,
- the special schools are full or closing, or that
- their authority is not doing Statements any more.
None of these is a legally valid excuse for failing a child with SEN.
The good news is that SEN is actually an issue highly regulated by law. For those with internet access at home, just a little clicking can come up with several sources of free legal information sheets and advice. Those without might be able to use their local library's internet facilities. The rights of parents with a child with SEN are now largely set out in the Education Act 1996 and supporting regulations also with the force of law. There is also a Code of Practice to which Local Authorities must have regard and a considerable body of case law filling in the remaining gaps. Local authority policy should be about how the authority fulfils its statutory duties and achieves consistency of practice, not how it limits them.
Support at school
Starting from scratch, if you are concerned about your child, here is what you need to know.
Teachers are able to "differentiate" the curriculum to meet the needs of most children. It is generally estimated that around 20% of children need some form of additional support during their school years, beyond normal differentiation. When special provision is made for a child, the parent should be informed. At the lowest level, in the state system the pupil may be said to be on "School Action". (Independent schools may use different terminology.) For many children, their problems will be short-lived and School Action will discontinue, or they could tick along for some time needing just a little bit of extra input.
For some, however, it may be considered that the school needs extra input, for example, advice from an educational psychologist, or, say, some sessions with a speech and language therapist. Or the child might already be seeing specialists out of school, for example, CAMHS for assistance with, say, a behavioural disorder. At this stage, when other professionals are involved the pupil, according to the Code of Practice, is said to be on "School Action Plus". Again there may be different terminology in an independent school. Intervention made at these stages should be recorded in Individual Education Plans (IEPs) (terminology can vary) for reasons which appear later.
School Action and School Action Plus are funded in different ways in different schools. For pupils in state schools there may be some funding available from the local authority but this is unlikely to be the case for a pupil in an independent school, although it may be worth asking. It is always the borough/authority where the child is resident which is responsible for a child. This may be different from the borough where their school is located. Some independent schools are able to provide a measure of extra help to pupils from within their resources. Others will need to make a charge for extras. Prospective parents should enquire about this prior to placing their child. Parents of pupils already in the school should check their contract with the school. Any additional charges should be proportionate to the cost of the service in order to avoid being discriminatory.
Assessments and Statements
Up to this point, the procedure is governed by the SEN Code of Practice. Again, it may be that with only a little extra funding or advice a child’s needs can be met at School Action Plus as a one off or indefinitely. If, however, the learning difficulty remains or has not been sufficiently remedied, it may be time to consider a Statutory Assessment and/or a Statement of Special Educational Needs. At this point the law kicks in with very clear rules.
A Statutory Assessment is the first step on the road to a Statement of SEN. Legally a Statutory Assessment should entail a far-reaching multi-disciplinary assessment of the child's special educational needs. In theory, it may be an end in itself with the school and parent benefiting merely from the information arising. Alternatively and more likely, it may be a gateway to a Statement of SEN.
A Statement is in Six parts and must set out all the needs found by the Statutory Assessment, what provision the needs call for, which school the child will attend, and any non-educational needs and provision. It has been likened to a diagnosis and a prescription. There is no legal limit on the amount of funding that could follow from a Statement. However, authorities typically have policies which try to ration resources equitably. These policies are not legally binding. A Statutory Assessment does not always lead to a Statement being issued. But a Statement is always preceded by an Assessment.
Occasionally people feel that this is unnecessary bureaucracy as the professionals and parents already know the problem and the answer, they just need the funding to get on with it. They may complain that they cannot access the additional funding without jumping through the Statutory Assessment hoops first.
The government anticipates that Statements will only be used for the most severe needs of the pupil population. Rough figures of between 2-4% are sometimes referred to. It is important to recognise that these figures are not binding at law; they are just "ball-park" figures. Authorities sometimes give similar or tighter figures in their own criteria. Children’s needs have a habit of not fitting into clearly definable boxes, however. If a child is below the first centile for literacy but otherwise fine, is he /she entitled to a Statement? If a child has Downs but has a reading age within "normal" limits, does he/she need a Statement? As you might expect, the lawful answer is, "It depends…" See below. "Your child does not meet our criteria" is unlikely to be a lawful answer.
One more point that often causes confusion: it is not necessary for a child always to go through the stages of "School Action" and "School Action Plus" before Statementing. For some children this would entail years of unnecessary failure. The Code of Practice highlights the benefits of early intervention and recognises that there will be a minority of cases where a pupil’s difficulties are so significant that immediate specialist intervention is required, beyond the capacity of the school.
How it works
So, to embark on the Statementing process, the first step is to make a formal request for a Statutory Assessment. This request may be made by the school or the parent. Parents are well advised to do it themselves in order to retain control of the process. A simple form of letter can be found on the IPSEA website, see below. The authority should then contact the parent and school explaining that it is considering making an assessment and asking for evidence of the child’s learning difficulties to be submitted.
According to the Education Act 1996, a child has special educational needs if he/she has a learning difficulty which calls for special educational provision to be made.
A child is considered to have a learning difficulty if:
- The child has a significantly greater difficulty in learning than the majority of children of his age.
- The child has a difficulty which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age in schools within the area of the Local Education Authority.
- The child is under the age of five years and is, or would be, if special educational provision were not made for him, likely to fall within the above paragraphs when over that age.
Note the absence of quotas, lower age limits, and other hurdles. Importantly, the benchmark for local authority responsibility is not that a child falls below the expectations of a particular school but below “the majority of children of his age” ie the population at large, and needs for help beyond what is “generally provided for children of his age in school in the area…”
Special Educational Provision means:
- In relation to a child who has attained the age of two years, educational provision which is additional to or otherwise different from the educational provision made generally for children of his age in schools maintained by the LEA (other than special schools)…in their area and
- In relation to a child under that age, educational provision of any kind.
The Code of Practice explains:
"In deciding whether to make a Statutory Assessment, the critical question is whether there is convincing evidence that, despite the school, with the help of external specialists taking relevant and purposeful action to meet the child's learning difficulties, those difficulties remain or have not been sufficiently remedied and may require the LEA to determine the child's special educational provision."
Evidence submitted should, therefore, include evidence of the nature of the difficulties (eg school reports, therapy reports, SATs results), the measures which the school has taken to help (eg records in IEPs), the extent that the difficulties remain (eg uptodate examples of work, exclusion letters, teacher assessments of NC levels). This is one reason why record keeping is very important in schools, so that progress or lack of it even with support, can be proven.
If the request for statutory assessment is declined, the authority must inform the parent of this and that they have a right of appeal within 2 months. The parent should be given details of how to appeal. This is the most common type of SEN appeal but parents who present the right evidence have a very high success rate. Given the law that all identified needs must be provided for, LEAs sometimes give the impression that they are loathe to assess in case they find something. Often an authority will throw an application back to the school. This can cause friction between parents and schools with parents being told that the school must provide, or is not the authority’s responsibility being independent, and schools knowing that they have not got the resources to do so. Parents are best advised to work co-operatively with their child's school, so far as possible. The school can be your best champion and ally as the party with the best opportunity of producing the necessary evidence of the child’s educational needs. If the Assessment goes ahead, strict time limits are laid down to protect parents and children from procrastination.
Disputes arise at later stages too, perhaps over the description of the child’s needs, the adequacy of provision or the appropriate school. There are 9 types of appeal altogether most of which are beyond the scope of this introduction.
Often parents seek help when they have come to the conclusion that a state-maintained school is not meeting their child's needs but their Local Authority will not agree to place their child in their preferred independent school or independent special school at the Authority's expense. Other parents are happy to fees but need help to fund top-up provision. Appeals involving independent schools are the hardest type of appeals and may well necessitate the expert help of a lawyer or other experienced advisor. Tribunals will only order an independent placement at the expense of the state (ie including payment of fees) when the parents can prove that a state-maintained schools cannot meet their child's needs. This entails very careful preparation of evidence. The law relating to top-up fees is complicated and local authorities vary in their responses, so gain, parents may need to seek independent legal advice.
Parents frequently find these matters extremely stressful. One parent recently, a high-achiever herself who had graduated from Harvard, passed professional exams, worked in the City and played sport at a high level, confided to ISC that her Appeal to the SEN and Disability Tribunal was the most stressful thing she had ever done. This is because of the emotional aspect. Our children are our most precious possessions and a vulnerable child has a very special place a parent's heart. It is very common for parents to feel that they need help to understand and cope with the SEN processes.
ISC is an association representing the professional associations of independent schools and Heads and does not give legal advice to parents. For free legally based advice, contact IPSEA a registered charity offering free and independent advice to parents of children with special educational needs in England and Wales. Alternatively parents can contact the Law Society for the names of specialist education awyers in their area.