When and how you should consider Special Educational Needs as part of a child's/young person's injury claim?

Where a child or young person has sustained an injury, whether through an accident or medical negligence, the initial focus is understandably centred on treatment and rehabilitation. Educational needs can either be overlooked or only considered at a later stage and perhaps when the delivery of education has become a critical issue.

Medical negligence and personal injury solicitors are well versed in assessing and quantifying damages, and yet it is all too easy to miss the child’s/young person’s educational needs.

The legal and political landscape for Special Educational Needs (SEN) is constantly evolving set against the challenges of public budget cutbacks.

What are the benefits of involving educational specialists in your claim?

The benefits to your client and savings achieved for the settlement fund/award can be significant.

Costs of an SEN placement and provision can vary from £16000 - £240000 + per year.

Provision and therefore the costs related to educational needs under an Education & Health Care Plan (EHCP) be they aids and equipment, specialist therapy support or 1:1 teaching support, are met by the Local Authority (LA). They are not means tested and have the potential to support your client through to the age of 25.

It follows that an education delivered and tailored to meet the needs of a child or young person will achieve the best outcomes.

What is SEN?

If a child has a greater difficulty in learning than their peers they have SEN. This can cover cases where a child has been physically disabled as a result of accident or injury (blindness or amputation for example) and requires the use of  aids or adaptations, IT technologies and the input of physical therapy in order to access education, through to those cases that have resulted in injuries impacting upon the child’s mental capacity (brain injury), requiring  speech and language input, occupational therapy and physiotherapy or those with complex needs (cerebral palsy) requiring a full spectrum of support extending to 52 week residential placements in a specialist school setting.

Every publicly maintained educational setting has a budget dedicated to the support of those students requiring support for their educational needs. Where despite the input of this extra funding needs are not being met the next step is the provision of an EHCP.  Specialist independent schools are sometimes the best option and again an EHCP can provide for such a placement.

What is an EHCP?

An EHCP is a legally binding agreement meaning the LA has a legal duty to secure the educational provision detailed in the plan.

Where health or care needs can also be shown to educate or train the child then again the LA are legally responsible to make sure that provision is delivered. At present only provision of educational needs is legally enforceable.

The EHCP process is vulnerable to derailment and delay through slow assessment and evaluation following an initial parent or school request. It is essential to adhere to timescales and activate rights to start an appeal process where necessary.

An EHCP can last until a young person attains 25 if they receive further education or enter an apprenticeship.

There is opportunity to request a personal budget which, if sanctioned, provides parents/deputies the opportunity to choose and fund their own educational support.

Of note is the provision under the Children & Families Act 2014 that at 16, and provided the child has mental capacity, then their wishes take priority over their parents.

The EHCP must be drafted so that there can be no dispute or misunderstanding as to what provision needs to be delivered.

EHCP’s are reviewed annually and at transition stages e.g. transfer from nursery to junior school, junior to secondary school and from secondary to 6^th form or a further education college. This serves to make sure the EHCP can be amended to reflect changing needs.

Experts

Medical evidence gathered as part of the claim process will inform you about the impact and prognosis of the injury to the child and formulation of a schedule of losses.

Expert evidence in an EHCP case seeks to identify the learning needs of the child, specify and quantify the provision required to meet those needs and may further address or indicate a school type or setting. Educational Psychological (EP) evidence invariably forms the cornerstone of an EHCP assessment and/or appeal. It is vital to ensure instructions are placed with an expert experienced with the educational tribunal system.

Ideally the EP will “sign post” the need for further expert evidence be it speech and language therapy, occupational or physiotherapy.

Costs of good experts can mount rapidly and become a necessity when the LAs’ commissioned experts’ reports don’t meet the SEN Code of Practice to specify and quantify the support required. 

The Education Tribunal - what to expect

The Education Tribunal setting aims to support parents many of whom are forced to represent themselves through lack of funding. Costs including those of experts are generally non-recoupable save in exceptional circumstances.

Expert witness attendance at tribunal is common which escalates costs. There is no system as seen in the Civil Procedure Rules to narrow areas of dispute amongst experts by way of questions or joint meetings, or even joint instruction of experts in order that expert attendance can be dispensed with.

The tribunal timetable is generally quick equating to approximately a school term.

Tribunals are scheduled for a half to a full day dependent upon the nature of the appeal and number of witnesses. LA’s often have professional representation.

What are the considerations for Practitioners/ Deputies/Case Managers when dealing with a child/young person claim?

Do not overlook the opportunity to claim for solicitor costs for SEN claims when formulating a schedule of loss.

A balancing exercise between the costs of a request for assessment or an appeal of the EHCP and the practical gains/financial savings is crucial.

Key questions for anybody involved with the claims process should include:

• How and when should an EHCP assessment be requested?
• Does your client have an EHCP? Is it fit for purpose? What provision is being delivered? Is it working?
• Is there likely to be a risk of a number of challenges to that EHCP given the variable nature and impact of the injury/age of the child throughout their educational life?
• What are your client’s educational/life goals and career aspirations?
• Is there a fundamental disagreement between the parents and the LA as to school placement? Is a private school setting more appropriate?
• If your client is over 16 do they have mental capacity to participate in education proceedings?
• Should any privately funded additional support related to educational needs (e.g. 1:1 support, therapies) be provided by the LA, thereby saving the child’s funds?

Investigation and funding for the potential of educational proceedings as a part of any claim should not be missed. Seek specialist educational solicitor input to enable and assist your client to secure the educational support their child requires.

For more articles like this subscribe to APIL's PI Focus magazine here.