As children head back to school in September, it’s important for parents/guardians to know that they’re getting appropriate support from their child’s school. Schooling plays a vital part in a child’s development, growth, and future, but unfortunately parents of those with Special Educational Needs (SEN), often feel let down by the education system.
Out of the total pupil population, 991,980 children and young people are reported to have some SEN requiring additional support and/or resources from school. This equates to 11.6% of the pupil population, of which 236,805 have a statement of SEN or an Education, Health and Care (EHC) plan – according to official statistics.
Our expert education team find that parents often have a very difficult time trying to access appropriate support for children with additional needs. Parents sometimes have to endure long and difficult disputes with local authorities to ensure that their child attends a school that is able to meet their needs or for appropriate support and provision to be put in place.
Sarah Woosey, specialist education solicitor at Irwin Mitchell, answers below some of the most commonly asked questions to help parents with children that have or need SEN support, or for young people wanting answers about what support they should be getting at school:
What should schools have in place to support my child’s SEN?
Under the Children and Families Act which was introduced in September 2014, there are a number of specific duties placed on schools which specify what they must do in relation to their students who have a disability and or SEN. For more information on these, see our factsheets on ‘Duties on Schools’. In particular, all schools have a duty to use their best endeavours to meet the needs of pupils with special educational needs.
All maintained schools (including academies) are provided with a budget annually which allows them to meet the needs of students attending school, including those with some additional needs.
Where a child requires additional support or provision to meet their SEN over and above what can be provided from within the resources ordinarily available to a mainstream school then they are likely to meet the criteria for an Education, Health and Care Plan.
You can find out what support and provision your school ordinarily makes for children with SEN in its “SEN Information Report” which all schools are required to publish on its website to inform parents and young people of how it meets the needs of its students with SEN.
In these circumstances, a request can be made either by the school or by the parents or young person directly. More information is available on this below.
For all other children, their needs will be met under a system of SEN Support which is described further below.
All schools must also comply with the Equality Act 2010 and ensure that they do not discriminate against students with SEN or allow them to suffer substantial detriment as a result of their SEN. They also have a duty to make reasonable adjustments. These duties apply equally whether or not the child has an EHC plan.
My child hasn’t been identified as having SEN but I am concerned that they may start to struggle as they get older. Should the school still continue to assess them and review whether they do have additional needs?
Schools should continually assess a child’s progress and should alert parents, and in some cases the local authority, where concerns exist over a child’s progress and where it’s thought that more support may be needed. The Specialist Educational Needs and Disability (SEND) Code of Practice 0-25, sets out more detail on how schools should monitor progress and overcome concerns over a child’s progress. Schools must have regard to the Code of Practice by law.
Paragraphs 6.64 to 6.71 of the Code of Practice states that schools must provide an annual report for parents on their child’s progress. A record of the outcomes, action and support agreed through the discussion should be kept and shared with all the appropriate school staff and given to the pupil’s parents. The school’s management information system should be updated as appropriate.
The Code also sets out the process that schools should go through when monitoring a child’s progress. The Code states that:
“Where a pupil is identified as having SEN, schools should take action to remove barriers to learning and put effective special educational provision in place. This SEN support should take the form of a four-part cycle through which earlier decisions and actions are revisited, refined and revised with a growing understanding of the pupil’s needs and of what supports the pupil in making good progress and securing good outcomes. This is known as the graduated approach. It draws on more detailed approaches, more frequent review and more specialist expertise in successive cycles in order to match interventions to the SEN of children and young people”
This is known as “Assess, Plan, Do, Review” and more information is set out in the SEN Code of Practice. Parents should always be informed when their child is receiving SEN support.
I don’t think my child is receiving the SEN support they need – how can I get the school to do more?
The first step will always be to raise your concerns with the school in the first instance. Your initial point of contact will usually be the class teacher but if you have already raised concerns to them and you do not feel like progress has been made, then you should seek to speak with the headteacher and/or the School’s Special Educational Needs Coordinator (SENCo). From a legal perspective, it is always advisable to confirm all of your concerns in writing (emails are fine) as you may need to rely on them later if your concerns are not resolved.
If speaking to the school is not effective and you consider that your child still needs extra support, you should consider requesting an EHC needs assessment from your local authority. This is the assessment that the local authority has to carry out in order to decide whether an EHC plan is needed.
It can often be helpful to expressly discuss this with the school beforehand and try to get their support/agreement on the need for assessment but you do not have to. Your local authority website should contain their ‘local offer’ pages (see below for more detail) and this should confirm where such a request should be sent. All requests should be made in writing and local authorities must respond to a request within a maximum of six weeks of the request being made.
In the request you should try and set out what steps the school have already taken to try and meet the child’s needs and why you think an EHC plan might be needed. You should include any evidence you have which supports the points you are making. Evidence can be obtained from a variety of sources – your GP, after school’s clubs, paediatrician, respite/short breaks carers and your own experiences and knowledge of your child and their needs.
Unfortunately, we often find that it is not unusual for local authorities to refuse to carry out EHC needs assessments. However, if they do refuse, parents have a right to challenge that decision to the Special Educational Needs and Disability (SEND) Tribunal. Such appeals must be made quickly and within a maximum of two months from the date of the decision letter. Parents must also consider whether to engage in mediation before proceeding to the Tribunal. There is a requirement for parents to speak with a mediation advisor (your decision letter from the local authority should provide contact details) before lodging a Tribunal appeal and obtain a mediation certificate confirming you have considered this.
Mediation is not compulsory and whether it is appropriate will depend on the circumstances of your case. In many cases, it can provide a good opportunity to discuss the issues with the local authority and understand each other’s views in a confidential setting even if ultimately agreement cannot be reached and an appeal is still required. If you engage in mediation and it is unsuccessful, your right to appeal will be extended as you have a further month from the date of the mediation certificate to lodge your appeal in such circumstances.
My child still has a statement of special educational needs. Should my child have an EHC plan instead?
Part 3 of the Children and Families Act 2014 came into force on 1 September 2014. This introduced significant changes to the legal framework which governs the process by which children and young people with special educational needs receive support.
Previously, if children had SEN that required support over and above what could be provided by a mainstream school, they should have been issued with a statement of SEN. This was a document which specified what the needs of that particular child were and what provision was needed to meet those needs. It should also have named a school placement that the child should have attended.
The Children and Families Act replaces statements with Education, Health and Care (EHC) plans which are similar to statements but have a wider application in that they also set out a child’s health and social care needs. The educational provision in a statement was always legally enforceable and the same is true for EHC plans. As was the case with statements, the education parts of an EHC plan can be challenged in the Special Educational Needs and Disability (SEND) Tribunal if necessary.
Between January 2015 and January 2016 there were 42,005 transfers from statements to EHC plans, according to official statistics.
The government’s intention is that all children and young people with statements will be transferred to an EHC plan by 2018. The process by which a statement is transferred to an EHC plan is called the “transfer review process” and must include an EHC needs assessment.
Each local authority must produce a plan which sets out when each group of children in their area will transfer. Priority is given to children who are transferring between different stages of education (for example from primary to secondary school). For example, any children that remain with a statement should receive an EHC plan naming a secondary school placement no later than 15 February in the year of transfer.
This means that there are still a significant number of children with statements and where this is the case, they remain legally enforceable and can be appealed to Tribunal (for example if requests for amendments are not agreed following an annual review).
Our child starts mainstream school this month but we think our child needs to be placed into a special school. They don’t have a SEN statement or a EHC plan – can they be moved once we have this in place? I am worried their needs will not be met in the meantime – what should I do?
If a child needs a specialist placement, they should also have an EHC plan (and if they were still under the old system, a statement). The SEN Code of Practice sets out some specific situations where it would be considered acceptable for a child to be educated within a specialist placement without an EHC plan. The Code makes it clear that these are exceptions to the norm and that if a child or young person requires a specialist placement; they clearly require an EHC plan.
The specified exceptions are:
- Where a child or young person is admitted to a special school for the purposes of an EHC needs assessment. Consent for this is needed for all involved (the parent, school and the local authority)
- Where an emergency placement is needed following a change in circumstances. Again, agreement is needed and an EHC needs assessment must be started immediately
- Where a child is admitted to a special hospital school
- Where a child is admitted to a special academy or special free school whose funding and admission arrangements allow for them to admit children who have special educational needs but do not have an EHC plan
As stated above, these situations are exceptional and should only be short term. If parents find themselves in such a situation and are concerned that progress is not being made, they should consider seeking advice.
My child has needs which affect their life both at school and at home. I know they need support but I don’t know what is available in my area or the type of support I can expect to receive.
Each local authority must publish a ‘local offer’ on its website. This must set out, in one place, information about provision they expect to be available across education, health and social care for children and young people in their area who have SEN or are disabled, including those who do not have EHC plans. In setting out what they ‘expect to be available,’ local authorities should include provision which they believe will actually be available.
The SEN Code of Practice makes it clear that the purpose of the local offer (which was a new concept introduced by the Children and Families Act) is:
- To provide clear, comprehensive, accessible and up-to-date information about the available provision and how to access it, and
- To make provision more responsive to local needs and aspirations by directly involving disabled children and those with SEN and their parents, and disabled young people and those with SEN, and service providers in its development and review.
Parents should be able to access their local offer by carrying out a general internet search for their local authority name followed by ‘local offer’. If parents identify gaps in provision available for children and young people with particular needs, this should be communicated to the local authority. The local authority is required to respond to comments on the local offer and should actively seek to try and plug any gaps in provision.
I’ve heard that I can get a personal budget for SEN provision but my local authority says that they don’t offer these. What can I do?
A Personal Budget is an amount of money identified by the local authority to deliver provision set out in an EHC plan where the parent or young person is involved in securing that provision. Personal Budgets are also available for health and social care provision but the Children and Families Act introduced them for educational provision.
The child’s parent or the young person has a right to request a Personal Budget, when the local authority has completed an EHC needs assessment and confirmed that it will prepare an EHC plan. You may also request a Personal Budget during an annual review of an EHC plan. A local authority cannot simply say that they don’t offer them. This would be unlawful. Personal Budgets should be focused to secure the provision agreed in the EHC plan and should be designed to secure the outcomes specified in the EHC plan.
Although a local authority must prepare a Personal Budget in certain prescribed circumstances, they do not need to arrange for the delivery of the budget to be made by direct payments (where individuals receive the cash to contract, purchase and manage services themselves) unless doing so would be an efficient way of meeting the child or young person’s needs. This can lead to disputes and we can provide advice on resolving such disputes.
My child wants to attend their sixth form but didn’t get the required admission grades from their GCSE results because of their SEN. What can we do?
If the young person has a SEN statement or an EHC plan and that school is named in the plan, then they must be admitted to that placement. If, following that institution been named, it becomes clear that the young person has not gained suitable grades to enable them to access the intended course, the local authority must urgently review the situation and options must be discussed.
If a young person has SEN but does not have an EHC plan then the situation is slightly different. Post-16 institutions can require new applicants to meet specific criteria for entry on to certain courses.
In most situations, this would not only be necessary but also sensible to ensure that those enrolling on the course can access it. However, such schools and colleges remain under an obligation to comply with their duties in accordance with the Equality Act 2010.
This prohibits discrimination on the basis of a person’s disability and this includes those with SEN. This means that there may well be situations where schools and colleges may have to depart from their usual strict criteria or entry procedure. In addition, schools are under a duty to make reasonable adjustments in an attempt to reduce or avoid any detriment caused to a disabled person due to usual practices or procedures.
If schools do discriminate against those with a disability, parents can make a claim of disability discrimination. Such claims are made to the Special Educational Needs and Disability (SEND) Tribunal. These claims must be brought within six months of the act of discrimination. The Tribunal has a wide discretion as to the remedies that can order following a finding of discrimination but they are prevented from awarding any form of monetary compensation.
My child needs to go to and from school via a specially adapted vehicle but they have been allocated a bus pass for use on the local buses – what can we do?
Local authorities have specific legal duties in relation to school transport. What those duties are depend on the age of the child or young person and, to some extent, their specific circumstances.
What is clear is that when local authorities are under a duty to make transport arrangements, such arrangements must be suitable. What is suitable may well be different for different children and therefore this could result in disputes between families and local authorities.
The statutory guidance offers some assistance in stating that “for arrangements to be suitable, they must also be safe and reasonably stress free, to enable the child to arrive at school ready for a day of study.”
If this is not the case, parents should contact the local authority. Local authorities should have a clear complaints/appeals process in place which allows concerns over the suitability of transport to be considered. If this is unsuccessful, parents may wish to seek legal advice from a specialist solicitor.
What advice and support is available if I am concerned that my child’s SEN are not being met?
Advice and support is available from a range of sources should you be concerned about your child’s SEN. Each local authority area must provide Independent Advice and Support Services (formally parent partnership) available for use by parents.
In addition, there are a number of charities which provide specialist advice to parents experiencing problems around securing appropriate support for their children. There are a number of local charities across the country and some of these should appear on your ‘Local Offer.’ There are also a number of national charities which can offer advice including:
IPSEA is a registered charity offering free and independent advice to parents of children with special educational needs in England and Wales on:
- local authorities’ legal duties to assess and provide for children with special educational needs;
- exclusions of children with special needs/disabilities;
- actions or inaction by local authorities and/or schools which discriminate against children with disabilities
General Advice Line: 0800 018 4016 for advice on: Problems with schools; requesting statutory assessment; proposed statements; annual reviews; possible disability discrimination; exclusion from school, etc.
Tribunal Help Line: 0845 602 9579 for next-step advice on SEN appeals and disability discrimination claims to the Special Educational Needs and Disability Tribunal including whether the individual requires casework support
Contact a Family National SEN Advice Service provides education specialist advisers from Monday-Friday, 9.30-5.00 pm to answer queries: 0808 808 3555 and can help on any aspect of education in England and Wales.
SOS!SEN work to empower parents and carers of children with SEN to tackle successfully themselves the difficulties they face when battling for their children’s rights.
National Helpline 020 8538 3731
They also currently offer free monthly advice centres spread across the month during school term times in Thornton Heath, Aldershot, Kent, Hampton Court, Oxford, High Wycombe, Manchester and near Waterloo station in central London.
Public funding (legal aid) of some kind may be available to deal with some of the issues discussed above. In order to access legal advice and assistance under the Legal Aid scheme on matters in relation to SEN, there is now a mandatory telephone gateway and individuals must telephone Civil Legal Advice on 0845 345 4345 or use the online enquiry form.
If appropriate, they will refer the case to a law firm who has a legal aid contract to provide advice and assistance on education law. In most cases, the Legal Aid Agency will consider the parents’ financial circumstances when determining whether a person is eligible for legal aid.
If parents are not eligible for legal aid support and are in a position to fund specialist legal advice, we would be happy to hear from you. Our team of specialist solicitors would consider your case and you will be provided with a detailed breakdown of the likely cost of your case.
We also have a legal aid contract which allows us to advise on community care issues which may arise in relation to your family, and any actions which may be challenged through judicial reviews which can arise through some of the issues discussed above.
To talk to an expert about SEN issues, call us on 0800 028 1943 or contact us online and we will get back to you.