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Education Law

Expert Education Law advice courtesy of the dedicated team of nationally respected specialist lawyers at HCB.

  • Comprehensive advice on all aspects of education law
  • Proven expertise in special educational needs and higher education law

Frequently Asked Questions

 

 

What are special educational needs?

Special educational needs are any form of difficulty a child or young person has in accessing education. Special educational needs (SEN) affect how a person learns. The needs can affect everything from:

  • physical ability
  • concentration levels
  • ability to understand
  • hearing and/or visual impairment
  • behaviour
  • reading
  • writing
  • social skills.

In England, special educational needs are defined by the Children and Families Act 2014. This creates a test for establishing whether a child or young person has special educational needs. If a child or young person has additional difficulties in accessing school or education, and requires support beyond that typically made for young people of the same age, they likely have special educational needs.

Since the Children and Families Act came into force in England, the term used is special educational needs and disabilities (SEND). This means that disabilities which have an impact on the ability to learn are specifically included.

If you are not sure whether your child or young person has special educational needs, you should seek specific legal advice.

What are additional learning needs?

Support for special educational needs in Wales comes from the Education Act 1996.

At the moment, Wales still uses the term special educational needs (SEN). The Welsh Assembly is looking to change how support for special educational needs is delivered. We have written about this in our blog.

Part of the planned reforms include changing the term ‘special educational needs’ to ‘additional learning needs’ (ALN). Whilst the wording is different, additional learning needs are basically the same as special educational needs. If a child or young person has difficulties accessing learning, and they re quire additional support beyond that typically made available in a mainstream school, they are likely to have additional learning needs.

If you are not sure whether your child or young person has additional learning needs, you should seek legal advice.

What is special educational provision?

Special educational provision is any educational support which is additional, or different, to that which would typically be made for children or young people of a similar age.

In England, provision made by Health or Social Care teams, which has the effect of educating or training, should also be considered special educational provision.

What qualifies as special educational provision can be subjective. It is important to know whether the support you are seeking qualifies as special educational provision.

What support is there for special educational needs?

England and Wales operate different systems of support for special educational needs.

In England

The Children and Families Act was introduced in September 2014. This changed how children and young people with special educational needs are supported.

Normally, school will identify that a child or young person has special educational needs. When this happens, the class teacher and Special Educational Needs Coordinator (SENCo), will plan additional support. This follows a cycle called “Assess, Plan, Do, Review”.

If the school does not identify a pupil with special educational needs, it may be necessary to seek an EHC needs assessment of their special educational needs from the local authority.

The child, young person and their parents / guardian should be involved in discussions with the school about planning support for special educational needs. It is important to be aware that schools receive a specific amount of money – often called a Delegated Budget – to support children and young people with special educational needs. As the Delegated Budget is finite, this can often limit the amount of support that can be available unless the local authority makes an Education Health and Care Plan (EHCP)

If the child or young person needs more support than the school can provide, an Education Health and Care Plan (EHCP) may be needed. The school should discuss with the child, young person and their parents / guardian requesting an EHC needs assessment. It is very important to note that there is no requirement to try to cycle of Assess, Plan, Do, Review before seeking an EHC needs assessment or an Education Health and Care Plan.

In Wales

The system of support for special educational needs in Wales is a graduated response. It has three levels; School Action, School Action Plus and Statement of Special Educational Needs.

School Action and School Action Plus are levels of support implemented by schools. Typically, a child or young person with special educational needs will start at School Action. This will involve the school planning support, implementing it and then reviewing the support. The review of the support normally happens once a month.

If School Action is not sufficient, School Action Plus will be used. School Action Plus is different from School Action because it includes the use of external agencies. This means that the school considers that it needs specialist advice in how to provide support.

If additional resources, funding or direct support from specialists is needed, a Statement of Special Educational Needs may be required.

It is important to note that it is not necessary to go through School Action or School Action Plus before applying for a statutory assessment for a Statement of Special Educational Needs.

If the local authority refuses to make a statutory assessment, or refuses to make a Statement of Special Educational Needs, it is possible to appeal to the Special Educational Needs and Disability Tribunal for Wales.

What is Assess, Plan, Do, Review?

Assess, Plan, Do, Review is a cycle of special educational provision which is used in England.

Rather than the graduated response, schools in England use a model of Assess, Plan, Do Review. This model requires schools to liaise with the child or young person, their parents or guardians, and relevant professionals to establish what special educational needs the young person might have. The school is the responsible for planning the special educational provision, implementing it and then reviewing it.

If the special educational provision is not sufficient, and there is evidence of inadequate progress at the review stage, the school should change the planned provision. This may include seeking advice from the local authority via an EHC needs assessment. 

Most children and young people with special educational needs will be supported at Assess, Plan, Do Review. Approximately, 80% of children and young people with special educational needs are supported at this level. Around 20% of children and young people with special educational needs require provision at the higher level of an Education, Health and Care Plan.

If your child or young person is supported at Assess, Plan, Do, Review, but you think they need additional support, you can request an EHC needs assessment. Before making the request, it is sensible to seek legal advice about how to make the application and prepare it to maximise your chances of securing an EHC needs assessment.

What is School Action / School Action Plus?

School Action and School Action Plus are forms of support for special educational needs. This system is used in Wales, but has been replaced in England by Assess, Plan, Do, Review.

Typically, a child or young person with special educational needs will start at School Action. This will involve the school planning support, implementing it and then reviewing the support. The review of the support normally happens once a month.

If School Action is not sufficient, School Action Plus will be used. School Action Plus is different from School Action because it includes the use of external agencies. This means that if the school considers that it needs specialist advice on how to prepare support for the child or young person, it should escalate the level of intervention to School Action Plus.

There is no requirement for child or young person to go through each level of support. Some may go directly to School Action Plus, others directly to a Statement of Special Educational Needs.

If your child or young person is having difficulties in school, they may require the additional support of School Action or School Action Plus. If the school has not identified that your child or young person needs additional support you should consider seeking legal assistance.

What is an Individual Education Plan?

An Individual Education Plan is a method of planning and recording the school-based intervention used in both England and Wales.

In England, schools use the Assess, Plan, Do Review model of delivering support for special educational needs. The Individual Education Plan is used to Plan the special educational provision that is made available and record any progress made for the Review phase. The Individual Education Plan is used at both Assess, Plan, Do, Review and Education Health and Care Plan levels.

In Wales, schools use a graduated response of School Action, School Action Plus and Statement of Special Educational Needs. An Individual Education Plan is used at all levels of intervention to record what support has been put into place, the effect of that support and whether it needed to be changed.

The Individual Education Plan should set out the provision, the outcome of the provision and how it has changed over time. They can be very important for monitoring the provision made and if an appeal is necessary, these can be important documents.

The Individual Education Plan should be reviewed at least twice a year but, ideally, a review will happen each term.

If your child or young person does not have an Individual Education Plan, it is worth seeking legal advice about how their school should be supporting them. If the school is not providing this support, you should consider requesting an EHC needs assessment or a statutory assessment.

What is an Education, Health & Care (EHC) needs assessment / Statutory Assessment?

A Statutory Assessment, is a process for working out what special educational needs a child or young person has, and the special educational provision they need.

In England, the process is an EHC needs assessment. In Wales, it is referred to as a Statutory Assessment.

The EHC needs assessment has to be completed before a child or young person can be issued with an Education Health and Care Plan. A Statutory Assessment must be completed before a child or young person can be issued with a Statement of Special Educational Needs.

A child’s parents, guardians or school can request an EHC needs assessment. In England, a young person, between 16 and 25, may make a request for an EHC needs assessment themselves.

An EHC needs assessment is completed by the child or young person’s local authority.

The local authority must conduct an EHC needs assessment if a child or young person may have special educational needs and that those needs might need the support of an Education, Health and Care Plan (EHCP).

Once the local authority receives a request for an EHC needs assessment / Statutory Assessment, it has six weeks to decide whether to make the assessment.

If the local authority refuses to conduct an EHC needs assessment / Statutory Assessment it is possible to appeal this decision to the Special Educational Needs and Disability Tribunal (SENDIST). The Tribunal will consider the legal test and the evidence that is available. It is often advisable to secure expert legal advice to prepare your appeal. Appeals against a refusal to assess are often dealt with on the papers, so it is very important to make sure that the appeal is prepared well, including detailed grounds of appeal.

During the EHC needs assessment, the local authority must seek advice from involved education, social care and medical professionals. Parents can also request further specific advice. If your local authority has agreed to make an assessment, it is worth taking advice about the process and what you are entitled to.

What is a Statement of Special Educational Needs?

Statement of Special Educational Needs are being phased out in England. By April 2018, all children and young people with a Statement of Special Educational Needs should be issued with an Education Health and Care Plan (EHCP). From September 2014, no new Statements of Special Educational Needs can be issued in England.

In Wales, children and young people with special educational needs that require support beyond that available in a mainstream school may require a Statement of Special Educational Needs.

A Statement of Special Educational Needs is a legally binding document which sets out a child or young person’s special educational needs, the special educational provision that they need, and what educational placement they should attend.

There is a legally required format for a Statement of Special Educational Needs. The document must be separated into the following parts:

Part 1 – General information, including name and address

Part 2 – Details of special educational needs

Part 3 – Details of special educational provision

Part 4 – School placement

Part 5 – Non-educational needs

Part 6 – Non-educational provision

Only Parts 2, 3 and 4 of a Statement of Special Educational Needs can be appealed to the Special Educational Needs and Disability Tribunal. In Wales, the appeal is dealt with by the Special Educational Needs and Disability Tribunal for Wales.

The local authority and the school named in Part 4 have mutual obligations to ensure that the special educational provision is made for the child or young person. The local authority is responsible for making sure that the school has sufficient funding and resources to be able to make the special educational provision. The school has a responsibility to ensure that it does make the provision.

If a child or young person requires specialist intervention, potentially including support from external experts, they may well need the additional support of a Statement of Special Educational Needs.

If your child or young person requires additional support, it is worth seeking legal advice about securing a Statement of Special Educational Needs. Equally, if your child or young person has a Statement of Special Educational Needs and you do not think that it is being followed, you are able to make an application to the High Court for enforcement. This can be a difficult procedure and you may need specialist legal assistance.

How do I get a Statement of Special Educational Needs?

It is now not possible to get a ‘new’ Statement of Special Educational Needs in England. Since September 2014, they have been replaced by Education Health and Care Plans.

It is possible to secure a ‘new’ Statement of Special Educational Needs in Wales. The starting point is to request a statutory assessment of your child or young person. This request must be sent to your local authority’s special educational needs team

If the local authority refuses to make the statutory assessment, it is possible to appeal to the Special Educational Needs Tribunal

If the local authority agrees to make the statutory assessment, or the Tribunal requires it, the local authority must seek advice about your child or young person’s special educational needs and the provision that they need.

Following the statutory assessment, the local authority must decide whether the identified support can be delivered within the school’s resources. If it can be, the local authority will refuse to make a Statement of Special Educational Needs. If it cannot, then the local authority will issue a Statement of Special Educational Needs.

If the local authority refuses to make a Statement of Special Educational Needs, or if you disagree with the provision that it calls for, or the school it names, it is possible to appeal to the Special Educational Needs and Disability Tribunal. These appeals can be difficult, and will require detailed application of the law to the facts. It can be very helpful to secure legal advice to prepare the appeal.

What is an Education Health and Care Plan?

Education Health and Care Plans (EHCPs) are the highest level of special educational provision in England. They were introduced in September 2014.

The Education, Health and Care Plan is a document which sets out the education, health and social care needs that your child or young person has and the support that they need.

The EHCP contains special educational provision as well as health and social care provision. Whilst the EHCP deals with more than just special educational needs and provision, a child or young person only qualifies for an EHCP if they have special educational needs

The EHCP is a legally binding document. It is binding on the local authority and local health authority. There is no required format for an EHCP, but it must contain the following Sections:

A - Views, interests and aspirations of the child or young person

B - The special educational needs

C - The health needs

D - Social care needs

E - Outcomes sought for the child

F - Special educational provision

G - Health care provision

H - Social care provision

I - School placement

J - Personal Budget

K - List of advice

If a child or young person requires specialist intervention, potentially including support from external experts, they may well need the additional support of an EHCP.

If your child or young person requires additional support, it is worth seeking legal advice about securing an Education Health and Care Plan. Equally, if your child or young person has an EHCP and you do not think that it is being followed, you are able to make an application to the High Court for enforcement. This can be a difficult procedure and you may need specialist legal assistance.

How do I get an Education Health and Care Plan?

If a child or young person in England has special educational needs, they require additional help with accessing learning. If a mainstream school is not able to provide adequate support without external help, the child or young person may require an Education Health and Care Plan.

To secure an Education Health and Care Plan, the local authority must first agree to make an EHC needs assessment of your child or young person. The local authority may decide to make the assessment itself, but most likely will have to be asked to make the assessment, this request must be sent to your local authority’s special educational needs team

The local authority may refuse to make the EHC needs assessment. If this happens, it is possible to appeal to the Special Educational Needs and Disability Tribunal.

If the local authority agrees to make the EHC needs assessment, or the Tribunal requires it, the local authority must seek advice about your child or young person’s special educational needs and the provision that they need.

After the EHC needs assessment, the local authority must decide whether your child or young person needs an Education Health and Care Plan. In making this decision, the local authority must apply the legal tests, rather than internal policy. In our experience, local authorities often confuse the two and this can result in poor decision making.

If the local authority refuses to make an Education Health and Care Plan, or if you disagree with the provision it makes, or the school it names, it is possible to appeal to the Special Educational Needs and Disability Tribunal. These appeals can be difficult, and will require detailed application of the law to the facts. It can be very helpful to secure legal advice to prepare the appeal.

What is an annual review?

Education Health and Care Plans (EHCPs) and Statements of Special Educational Needs must be reviewed at least once a year. For children under the age of five, the review must happen at least once every six months.

At the beginning of the school term, the local authority must send out to all schools a list of children and young people who must have an annual review during that term.

Once the school receives notice that an annual review is required, it will seek advice from the involved professionals, from parents and from the young person themselves.

The purpose of the annual review is to discuss whether the EHCP, or Statement, properly identifies the child or young person’s special educational needs and provides adequate special educational provision for them. In our experience, local authority officers do not tend to attend the annual review unless there is an amendment being sought by parents.

During the annual review of an EHCP, the Outcomes of the Plan must also be reviewed and changed if appropriate. An Outcome will need to be changed if it has been achieved, it requires clarifying or if it is no longer realistic.

Following the annual review, the school must send a report to the local authority within two weeks. This report must set out what the recommendations are for changes. The report should also set out any other changes that parents, or the young person, have requested but that the school does not support.

Once the local authority receives the report from the school, it must decide whether or not to make any changes to the Statement of Special Educational Needs or Education Health and Care Plan. If the local authority does not make the amendments that the parents, or young person, have requested, it is possible to appeal to the Special Educational Needs and Disability Tribunal.

An annual review can be a good opportunity to secure changes to a Statement or EHCP without having to appeal to the Special Educational Needs and Disability Tribunal. As such, it can be helpful to secure advice before the meeting, and assistance at the meeting from specialist solicitors.

How does a Statement become an EHCP?

The deadline for all Statements to be converted into EHCPs is 31 March 2018. By that time, all children and young people with a Statement should be issued with a new EHCP.

The Department for Education (DfE) has stressed that no child or young person should lose support as a result of moving from a Statement to an EHCP. The DfE has also stressed that it does not expect a local authority to refuse to make an EHCP for a pupil who otherwise has a Statement.

The process of converting to an EHCP is called “transfer review”. This is conducted by the local authority who must give parents, or young people, at least two weeks notice before the transfer review starts. 

During the transfer review process the local authority must complete an EHC needs assessment.  Until the assessment is completed, the Statement of SEN remains in place and is enforceable.

The local authority does not have to seek any advice if parents (or young person), the school and relevant experts agree that the existing advice is sufficient. It is very important that you do not agree to this unless you have a very clear understanding of the legal material and the support that the child or young person is receiving. It is sensible to seek legal advice if the local authority asks you to agree to dispense with the need for new advice.

A transfer review cannot take place if there is an appeal about the content of the Statement to the Special Educational Needs and Disability Tribunal. Equally, when the local authority informs you that it will be completing an EHC assessment, you will not be able to make any appeals to the Tribunal about the content of the Statement.

EHCPs are written around ‘Outcomes’. These are the benefits or achievements that the child or young person is hoped to receive as a result of having the EHCP. Parents and young people must be asked for their views about the outcomes and local authorities must taken these views on board.

Outcomes must be written so that they are SMART: Specific, Measurable, Achievable, Realistic, Time-bound.

Following the transfer review, the local authority can refuse to make an EHCP. It can only do so if it is satisfied that the child or young person no longer requires special educational provision which goes beyond that which is normally available in a mainstream school. In our experience, this would be very unusual and if your child or young person is refused an EHCP, having had a Statement of Special Educational Needs, you should seek legal advice on making an appeal to the Special Educational Needs and Disability Tribunal.

What is a transfer review meeting?

The process of conversion from a Statement of Special Educational Needs to an Education Health and Care Plan includes a meeting between parents, the young person, school, involved professionals and the local authority. This meeting is referred to as a transfer review meeting.

The meeting can take place at any point during the conversion process and there is no set agenda for the meeting. To prepare for the meeting it is important to understand the process of conversion from Statement to EHCP  and to consider what Outcomes should be included in the EHCP. It can be useful to seek legal advice prior to the meeting, and potentially assistance at the meeting, to ensure that the process is being properly followed.

I disagree with a Statement of Special Educational Needs – what can I do?

Once the Statement of Special Educational Needs is finalised, it is possible to challenge the content of it to the Special Educational Needs and Disability Tribunal.

A right of appeal to the Tribunal arises if:

  • The local authority has refused to make an amendment following an annual review
  • The local authority has not made all the amendments sought following an annual review
  • You disagree with some of the amendments the local authority has decided to make following an annual review
  • The local authority has issued a ‘new’ Statement of Special Educational Needs and you disagree with the content

It is only possible to challenge Parts 2, 3 and 4 of the Statement of Special Educational Needs. They are the description of special educational needs, the special educational provision and educational placement respectively.

After receipt of a final Statement of Special Educational Needs, or notification of a refusal to make any amendments, you will have two months to appeal to the Special Educational Needs and Disability Tribunal.

The process for appealing is similar in England and in Wales. The same law applies, but the Code of Practice is slightly different in England and Wales. Further, in Wales, the appeal is handled by the Special Educational Needs and Disability Tribunal for Wales.

The content of Part 2 must be sufficiently detailed so as to set out all of the child or young person’s special educational needs. Part 3 must set out, in adequate detail, the precise special educational provision that the child or young person must receive. Part 4 names which school the child or young person must attend.

If you think that the Statement of Special Educational Needs is wrong, or you are unhappy about the school named, you should consider an appeal to the Special Educational Needs and Disability Tribunal. Before starting an appeal, it is advisable to seek specialist legal assistance about how to appeal and for a review of the prospects of success.

Can I change the school in a Statement of Special Educational Needs?

A Statement of Special Educational Needs will only name a school in Part 4 when it is finalised.

Before the Statement is finalised, the local authority must ask for parents’ preferred educational placement. The young person’s views will also be sought.

Once parents have expressed a preference, the local authority must consider whether or not to agree to name it in the Statement of Special Educational Needs. Once a school is named in a Statement of Special Educational Needs, the local authority is responsible for ensuring the child or young person is able to attend there. This can include payment of school fees, if applicable.

If the local authority refuses to name parents’ preferred placement, it is possible to appeal to the Special Educational Needs and Disability Tribunal. The appeal must be started within two months of receiving the final Statement of Special Educational Needs.

There is a significant amount of law covering the topic of schools named in a Statement of Special Educational Needs. In order to present a successful appeal to the Special Educational Needs and Disability Tribunal, you will need to know this law and apply it to your appeal. As such, it is normally helpful to seek specialist legal assistance.

Can I change the school in an Education Health and Care Plan?

Before the local authority makes a final Education Health and Care Plan, it must ask parents, or the young person, which educational placement they want named.

If the school or educational placement is named in an EHCP, it must admit the child or young person. Equally, if there are fees associated with the placement, the local authority must pay those fees if it names the placement in Section I of the EHCP.

The local authority must consider whether or not to agree to name the preferred educational placement in the EHCP. If the local authority does not name parents’ preferred placement, it is possible to appeal to the Special Educational Needs and Disability Tribunal.

There is typically a time limit of two months to appeal a decision to the Special Educational Needs and Disability Tribunal. In some circumstances, it is necessary to consider mediation and secure a mediation certificate.

There is a significant amount of law covering the topic of schools named in an Education Health and Care Plan. In order to present a successful appeal to the Special Educational Needs and Disability Tribunal, you will need to know this law and apply it to your appeal. As such, it is normally helpful to seek specialist legal assistance.

Can I ask the local authority to pay for an independent school?

It is possible to secure a placement in an independent, or non-maintained, school for a child with a Statement of Special Educational Needs or an Education Health and Care Plan, it is possible to secure a placement for them in an independent school.

If an independent or non-maintained school is named in a Statement of Special Educational Needs, or an Education Health and Care Plan, the local authority is responsible for paying the fees.

All local authorities must ensure that they are making reasonable use of public funding. That means that the local authority will have to be convinced that the costs of placing in an independent school are reasonable. This is normally on the basis that the costs are necessary to meet the child or young person’s special educational needs.

Securing a placement in an independent school requires a knowledge of the law as well as understanding how funding for special educational needs provision works. As such, it can be very helpful to obtain specialist legal advice.

How can I get a place in a special school?

Whilst it is possible to secure a place in a special school without a Statement of Special Educational Needs (SSEN), or Education Health and Care Plan (EHCP), this is unusual. If a child or young person requires a special school it is very likely that they also require with an EHCP or an SSEN. If you are considering a place in a special school, you should also be making a request for a statutory assessment if you have not already secured an SSEN or EHCP.

When a Statement of Special Educational Needs, or Education Health and Care Plan, is finalised, or reviewed, parents, or the young person, can express a preference for a school placement.

For both Education Health and Care Plans, and Statement of Special Educational Needs, there is a presumption that preferred placements will be named. There are some exceptions to this. Typically, a preferred placement is not named because it either is too expensive, or because the local authority believes that the school requested is not suitable for the child or young person.

If a parent requests a maintained special school, the local authority will have to establish that the school is either unsuitable, or that the admission of the child or young person will have a negative impact on the education of the pupils already at the school.

If the preferred placement is either independent or non-maintained, costs of placement will have to be considered. If the local authority can identify an alternative placement, the costs of the places will be compared to establish which is more costly. The local authority will name which school it considers to be a reasonable use of public funding. This is typically the cheaper option. It is important to remember though, that the most important issue is securing a suitable school placement, not just the cheapest school placement.

In order to secure a special school, it is important to understand the different types of school places, how the law applies in relation to those different types of schools and the law of funding special educational provision. As such, it is often helpful to seek specialist legal advice.

How can I get a place in a mainstream school?

There is a statutory presumption that children and young people with an Education Health and Care Plan (EHCP), or a Statement of Special Educational Needs (SSEN) are educated in mainstream school. That is unless it is unsuitable with their needs, or parents seek a specialist placement.

If parents, or young person, request that a maintained mainstream school is named in an EHCP, or SSEN, there is a very strong presumption that that school must be named by the local authority.

If parents, or the young person, ask for an independent, or non-maintained, mainstream school, the local authority will have to consider the costs of that placement. The local authority must name a suitable school placement, not just the cheaper school.

If the local authority refuses to name a mainstream school, it is possible to appeal to the Special Educational Needs and Disability Tribunal. These appeals can be complicated, especially for an independent, or non-maintained, school. It can be very useful to secure legal advice about the law and operation of funding for special educational provision.

I disagree with the content of an Education Health and Care Plan – what can I do?

Once an Education Health and Care Plan is finalised, it is possible to challenge the content of it to the Special Educational Needs and Disability Tribunal.

A right of appeal to the Tribunal arises when:

  • The local authority has refused to make an amendment following an annual review
  • The local authority has not made all the amendments sought following an annual review
  • You disagree with some of the amendments the local authority has decided to make following an annual review
  • The local authority has issued an Education Health and Care Plan and you disagree with the content of it

An appeal can only be brought about the education sections of the EHCP. Those are Section B – special educational needs, Section F – special educational provision and Section I – educational institution.

After receipt of a final Education Health and Care Plan, or notification of a refusal to make any amendments, there is a deadline to start an appeal with the Special Educational Needs and Disability Tribunal If the appeal is about school placement only, there is no need to consider mediation. The appeal must be brought within two months of the decision. If the appeal also deals with Section B and/or F, you must also at least consider mediation. This involves speaking with a mediator and obtaining a mediation certificate.

Details of the mediation service will be on any decision letter the local authority send. If you need to consider mediation, you must contact the mediation company within two months. You will then have a further month from the date of the mediation certificate to start the appeal.

If you think that the Education Health and Care Plan is wrong, or you are unhappy about the school named, you should consider an appeal to the Special Educational Needs and Disability Tribunal. Before starting an appeal, it is advisable to seek specialist legal assistance about how to appeal and for a review of the prospects of success.

What help is available for students aged 16 plus with special educational needs?

Where a young person has special educational needs, any further education establishment they wish to attend should use its best endeavours to provide the support they need, which will usually be through SEN support. This could be from outside of the establishment, and should be regularly reviewed. Progress should be monitored and recorded and you should be kept informed.

The transition from school to post-16 education can be a challenging time of change, and is often a daunting experience for both the young person and his or her parents. Different authorities and agencies will start to be involved at varying stages throughout the process, for example the young person will transfer from children’s health care to adult health care at 16, but will not transition to adult social care until the age of 18.

Ideally you should start looking into your options concerning special educational provision from Year 9. A review will take place annually from this point, and ideally you should try and push for the Year 11 review to take place as early on in the academic year as possible to allow sufficient time for planning. The Special Educational Needs Code of Practice in England dictates that transition planning should be ‘participative, holistic, supportive, evolving, inclusive and collaborative’. The transition plan should incorporate the wishes and goals of the young person, together with the support required.

February 15th is a very important date in the special educational needs diary: it signals the deadline by which all Local Authorities across England and Wales must have issued a Final Amended Statement of Special Educational Needs or EHCP for children in their final year of primary or secondary education.

Unfortunately, many Local Authorities do not adhere to this deadline, which can delay things, particularly when there is a need to appeal. Keeping on top of things and making sure the revised plans are provided on time is crucial. A post 16/19 special needs solicitor will be able to guide you through this vital stage of your child’s educational career and will work with you to ensure the transition plan and revised EHCP is appropriate. These Plans remain in place for the young person up to the age of 25.

What is a mediation certificate?

If you are appealing against the content of an Education Health and Care Plan (EHCP) you may have to at least consider mediation. Mediation certificates only relate to special educational needs disputes in England.

You have to consider mediation in all disputes unless it relates solely to the school or educational institution named in the Education Health and Care Plan.

When the local authority sends a decision letter to you, it must confirm the mediation company that it has contracted to work with. You must contact the mediation company within two months of receiving the decision letter.

There is no requirement to try mediation, but ou must at least speak with the mediation company about your dispute. The mediator will explain how mediation works and its benefits and limitations.

If you try mediation, a meeting must be arranged within 30 days.

Either once you have declined mediation, or been through the process, you will be issued with a mediation certificate. This will confirm whether mediation was tried and, if so, what the outcome of the mediation was.

Once you receive the mediation certificate. You will have a further month to start an appeal with the Special Educational Needs and Disability Tribunal, if the dispute remains.

Should I try mediation?

The special educational needs reforms in England introduced the requirement to consider mediation before most disputes are taken to the Special Educational Needs and Disability Tribunal.

Mediation can be a relatively quick and inexpensive way of resolving a dispute. The mediation meeting should take place within 30 days of your requesting mediation. The local authority is required by law to send an officer who is authorised to make binding decisions for the local authority.

In our experience, however, we are finding that mediation is taking longer than 30 days to arrange. In many cases, local authorities are either refusing to engage in mediation or are refusing to send an officer to the meeting who is able to make a binding decision. Both of these are unlawful.

Because of the practical difficulties with mediation, there are limits to its use. However, in theory, mediation can be a productive and quick way of resolving disputes.

There is no general answer to whether mediation should be tried. If you are not sure about whether to explore mediation, speaking with the mediation company or seek specialist legal advice first.

How do I appeal to the Special Educational Needs and Disability Tribunal?

If you disagree with a decision that the local authority has made, you may be able to appeal to the Special Educational Needs and Disability Tribunal.

In England, the Special Educational Needs and Disability Tribunal deals with:

  • A refusal to make an Education Health and Care (EHC) needs assessment
  • A refusal to make an Education Health and Care Plan (EHCP)
  • The description of special educational needs in an Education Health and Care Plan
  • The special educational provision in an Education Health and Care Plan
  • The school named in an Education Health and Care Plan
  • The description of special educational needs in a Statement of Special Educational Needs
  • The special educational provision in a Statement of Special Educational Needs
  • The school named in a Statement of Special Educational Needs
  • A refusal to change a Statement of Special Educational Needs, or Education Health and Care Plan, following an Annual Review.

If you are unhappy with the Final EHCP or Statement of Special Educational Needs then you can appeal to the Special Educational Needs and Disability Tribunal (SENDIST). This must be done within two months of receiving the final document.

If it is more than two months since you received the final Statement of Special Educational Needs, or Education Health and Care Plan, you will have to discuss any concerns during an Annual Review.

Unfortunately, many ECHPs and Statements of Special Educational Needs are written in vague terms and teachers often find them unhelpful. If you are in a situation where you have accepted an EHCP, or Statement, but are finding that it is not meeting your child’s needs as expected, then you should discuss your concerns with the child’s teacher and Special Educational Needs Co-ordinator (SENCO). The contents of the Plan or Statement will be discussed at an Annual Review, but if you have serious concerns ahead of this then you are able to request an early review.

You will need to prepare your own detailed written report in advance of the review, outlining what you believe your child should be getting and providing supporting evidence. Reports from professionals such as doctors and therapists who know your child will further assist your case.

If after the annual review the EHCP or SEN Statement remains unchanged, or the changes are not to your satisfaction, then you can appeal to SENDIST.

Preparing for an annual review and an appeal to the Tribunal can be difficult and often specialist legal advice is needed.

How do I appeal to the Special Educational Needs and Disability Tribunal for Wales?

In Wales, if the local authority makes a decision you are unhappy with you may be able to appeal to the Special Educational Needs and Disability Tribunal for Wales.

The Special Educational Needs and Disability Tribunal for Wales deals with:

  • A refusal to make a Statutory Assessment of special educational needs
  • The description of special educational needs in a Statement of Special Educational Needs
  • The special educational provision in a Statement of Special Educational Needs
  • The school named in a Statement of Special Educational Needs
  • A refusal to make changes to a Statement of Special Educational Needs following an Annual Review

If you are unhappy with the Statement of Special Educational Needs then you can appeal to the Special Educational Needs and Disability Tribunal for Wales (SENTW). This must be done within two months of a final Statement of Special Educational Needs being made.

If more than two months have passed since the Statement of Special Educational Needs has been made, you can seek changes through the Annual Review. If you have concerns, then you should speak with the teacher and Special Educational Needs Co-ordinator (SENCO). The contents of the Statement will be discussed at an Annual Review, but if you have serious concerns ahead of this then you are able to request an early review.

You will need to prepare your own detailed written report in advance of the review, outlining what you believe your child should be getting and providing supporting evidence. Reports from professionals such as doctors and therapists who know your child will further assist your case.

If after the annual review the Statement of Special Educational Needs remains unchanged, or the changes are not to your satisfaction, then you can appeal to SENTW. You must do so within two months of a decision letter following the annual review.

Preparing for an annual review and an appeal to the Tribunal can be difficult and often specialist legal advice is needed.

Should I use a special educational needs solicitor?

You will benefit from the specialist assistance of a special educational needs solicitor in making any appeals to the Local Authority against what you believe to be an unsuitable Education Health and Care Plan or Statement of Special Educational Needs; in challenging them over a decision to not assess your child; in appealing to the Special Educational Needs and Disability Tribunal and in assisting with your child’s annual review and gathering professional evidence.

A special educational needs lawyer will also be able to guide you should you wish to move your child to another school. Reassessments will be required and liaison with the Local Authority can often prove challenging. With the right help behind you however, you will have a far greater chance of achieving the outcome that you believe is right for your child.

In recent years, many local authorities have instructed their own solicitors, or barristers, to represent them. Whilst appeals before the Tribunal are intended to be informal, the frequent use of lawyers by local authorities often means that cases become very complex very quickly.

Special educational needs legislation is incredibly complex, and guidance from an experienced professional who knows the system inside out is invaluable. In essence if you want us to handle the entire process we can deal with all aspects of your Tribunal appeal and we provide a fixed fee quote for such work.

What are the main changes brought in by the Children and Families Act 2014?

The Children and Families Act was introduced with the aim of simplifying and improving the assistance available for children and young people with special educational needs and disabilities. Provision was extended from birth to 25 years of age and the Act introduced the Education, Health and Care Plan to replace the SEN Statement with the objective of making support for families more tailored.

Who is the Special Educational Needs Code of Practice for?

The SEND Code of Practice was devised to explain the responsibilities of Local Authorities, educational establishments such as early education settings, schools and academies together with health organisations to those with special educational needs in accordance with the Children and Families Act 2014. The Code is for Head Teachers and Academy Principals; Governing Bodies; school staff; SEN coordinators; Local Authorities; early education providers and health and social services personnel.

What do parents need to know about the Special Educational Needs Code of Practice?

Whenever a decision is made by a school concerning children with special educational needs or disabilities, consideration must be given to the SEND Code of Practice. It details the legal requirements that must be followed – without exception – and provides statutory guidance that must be adhered to by law, unless a valid reason exists not to.

It is useful for parents to be aware of the duties placed on schools by the SEND Code of Practice. These are as follows:

  • Schools must be sure to identify and address the special educational needs (SEN) of the pupils under their care.
  • Parents and pupils should be actively involved in all the decision making processes.
  • Schools are expected to use their best endeavours to ensure children with SEN receive adequate support.
  • A teacher has to be assigned as responsible coordinator for all SEN provisions, other than in academies for 16 to 19 year olds.
  • All schools must have a member of the Governing Body or sub-committee allocated to oversee the SEN and disability provision.
  • All pupils with SEN should engage in the same activities alongside other pupils.
  • Schools are required to inform parents when they are making special educational provision for pupils.
  • A SEN information report must be prepared.

Medical conditions are also covered under the Code and the Children and Families Act 2014 provides that maintained schools and academies are required to make arrangements to support pupils with medical conditions.

Also under the Code, pupils have a right to a balanced and broad curriculum and there is a requirement to plan lessons around potential areas of difficulty. Any barriers to achievement must also be overcome.

 

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