Special Education Needs Law in England

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Special Educational Needs Law in England

In England the Children and Families Act 2014 introduces Education, Health and social care plans (EHCPs) and has entirely split the legal system for children in England from Wales. All parents who now wish to apply for a statutory assessment of their child’s needs in England must now do so through The Children and Families Act 2014. The below information will explain the changes and will assist you regarding how to apply for a new statutory assessment in England. If you are still following the old statement system please consider the information provided on our website elsewhere.

Children and Families Act 2014

The education provisions of the Children and Families Act were implemented in September 2014, alongside a new Code of Practice and new regulations. 

The legislation provides for a number of changes in the way that special educational needs provision is governed.  The key changes are as follows:

  • Statements of Special Educational Needs will replaced by Education, Health and Care Plans (“EHCPs”) which will last until a child is 25 taking away, in part, the artificial distinction between compulsory education and post-16 education.
  • Learning Difficulty Assessments and Statements of SEN are to be abolished save for transitional arrangements.
  • EHCPs will not continue when the young person attends university or undertakes a full-time apprenticeship.
  • Only the education element of the EHCPs can be appealed to the Special Educational Needs Tribunal.
  • Duty is now placed upon parents to consider mediation as part of an appeal to the SEN Tribunal.
  • There is a new duty for Local Authorities to set out the special educational provision provided in the local area, this is called the “Local Offer”.
  • A new option is available for parents to request a personal budget.
  • A new pilot for allowing children/young people to appeal to the First Tier Tribunal.
  • A new emphasis on promoting integration between services (health, social care, and education).

What is a Special Educational Need?

The definition of the phrase ‘special educational needs’ can be found in Sections 20 and 21 of the Children and Families Act 2014 (the definition remains largely the same as previously set out in Section 312 Education Act 1996 ) which defines ‘special educational needs’ as

  1. a ‘learning difficulty’;
  2. which requires ‘special educational provision’.

Learning difficulty

A child has a ‘learning difficulty’ if the child:

(a) Has a significantly greater difficulty in learning than the majority of the children of the same age; or

(b) Has a disability which prevents or hinders them from making use of educational facilities of a kind generally provided for children of the same age in schools within the area of a local authority; or

(c) Is under compulsory school age and falls within the definition (a) or (b) or would do so if special educational provision were not made for them.

Definition of Special Educational Provision

‘Special educational provision’ means:

(a) For a child aged two or over: educational provision which is additional to, or otherwise different from, the educational provision made generally for children of their age in schools maintained by the local authority—other than special schools—in the area.

(b) For children under two years old: educational provision of any kind.

The process leading to an EHCP

The starting point is in class support: a child’s class teacher providing the child with differentiated learning opportunities in class to help them make progress and carefully monitoring them to see if progress is being made.  Where a child has failed to make progress, the child’s case should be referred to the school’s Special Educational Needs Co-ordinator (SENCo) who will usually place the child on a ‘School Action’ programme.

If a child has still failed to make expected academic progress then a Statutory Assessment to determine the child’s special educational needs and the provision required to achieve progress (whether within the school’s resources or within a Statement of Special Educational needs) should then be considered.

The legal criterion is found in Section 36 of the Children’s and Families Act 2014 (replacing section 323 of the Education Act 1996 however the test remains the same) that local authorities should follow, when determining whether to carry out a Statutory Assessment, is whether it is “probably necessary” for a local authority to determine the specialist provision a child’s special educational needs require.

In determining whether this determination is “probably necessary”, a local authority should look at the level and the extent of a child’s learning difficulties, the provision the child has received and also any additional provision independently provided by a child’s parents.  The local authority should also

examine whether any of the child’s needs may indicate other learning needs which may not have been identified yet.  After considering this, it should go on to judge the child’s progress and determine whether progress is adequate; if independent provision is being provided, it should consider whether progress would be halted or reversed without this provision.

Each case must be examined on an individual basis.  However, generally, if - after examining all of the above information - it becomes clear that a child is not making and indeed cannot make progress without a Statutory Assessment taking place, then the local authority should conclude that it is ‘necessary’ to carry out the Assessment.

Unfortunately, in deciding whether to carry out a Statutory Assessment, many local authorities’ internal panels will rely on internal criteria which may not reflect the actual legal criteria.  These internal criteria are often rigidly applied without fully looking at an individual child’s needs and circumstances.  In many cases, they can have a much higher threshold for a Statutory Assessment than the legal threshold of probable necessity.  This means that, in many cases, a local authority will wrongly turn down a request for a Statutory Assessment.

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