...even more unlawful SEN policies

We received a letter recently which describes another blanket policy being operated by at least one local authority (LA). The letter is from an LA to the parent of a child with special educational needs and disabilities (SEND).

The letter sets out:

“In response to the change in [SEND] legislation, and the requirement to convert statements to Education, Health and Care plans, we have been reviewing those statements which we have received requests for amendments. Where a child or young person has had or us due to have a transfer review in the next twelve months, we do not plan to issue an amended statement unless there is an exceptional circumstance. This means we will not be issuing an amended statement for your child or young person at this time. Please be assured that the changes that have been requested will be considered as part of the transfer review process”.

This letter was received by a parent after they requested changes to a Statement of Special Educational Needs during an Annual Review.

What does this mean?

What this means is that if a child or young person is due to make the move from Statement to Education, Health and Care Plan (EHCP) in the next year, the LA will not agree to change their Statement until that move happens.

The LA does allow for “exceptional circumstances”, but it is unclear what that actually means, or who is the judge of what is “exceptional”. We assume it will be the LA themselves.

This means in effect, that the LA is permitting itself to refuse to make any changes to a Statement on the basis that there are no “exceptional circumstances”. There is also no reference to the parent’s right of appeal against a decision to refuse to amend a Statement.

We consider that this approach is unlawful.

What is the law?

For children with a Statement of Special Educational Needs, the Education Act 1996 still applies. This means that the 2001 SEN Code of Practice also still applies to those children. They continue to apply until the child has been issued with a Final EHCP.

During an Annual Review, parents are entitled to make comment about the comment of the Statement of Special Educational Needs.

After the Annual Review meeting, the school will prepare a report which is sent to the LA. That report will conclude whether the school agrees with the requested changes. Even if the school does not agree with the requested changes, the LA still has to decide whether to make the changes that the parent has requested.

The LA must decide on whether to make the amendments requested on the basis of whether they are necessary. The changes are necessary if the current content does not correctly or adequately describe the child’s SEND, or cater adequate or lawful support for the child’s SEND. There is no provision in either the law, or the Code of Practice, that changes will only be made in “exceptional circumstances”. That means that this LA has raised the threshold for making amendments, which is unlawful.

If the LA decides not make the changes that the parent asks for, there is a right of appeal to the Special Educational Needs and Disability Tribunal (SENDIST).

What should you do?

If you are in a situation like this, it is advisable to raise your concerns with your LA.

This is particularly relevant if you have requested a change to a Statement during an Annual Review. The LA must consider whether to make those amendments on the basis of whether they are necessary. The test of “exceptional circumstances” does not exist.

The LA does not have to agree to make the changes. However, it must consider the request that you make during an Annual Review.

Even if the LA does not agree to the changes, it must write to you and tell you. If this follows an Annual Review, the LA must also tell you about a right to appeal to SENDIST. If the LA fails to do so, you should be asking the LA to confirm why it has refused the amendments and why it has refused to confirm your right of appeal.

If the LA does not write to you to confirm that you have a right of appeal, you can still appeal to the SENDIST. When you send your appeal form to the SENDIST, you will need to explain the situation and that a right of appeal has arisen.

Conclusion

This is clearly an attempt to save resources (time and money).

It is widely documented that local authorities are struggling with the process of converting Statements to EHCPs.

Whilst attempts to improve efficiency are to be encouraged, if they result in unlawful decision-making those steps should be stopped immediately.

We are writing to the LA concerned directly about this issue.

I am so happy at the outcome, I don't think we would have had such a comprehensive service from any other law firm, and you took the worry away...I do not regret a single second of the whole process, apart from the bit before you got involved. 

James' mother, Boyes Turner client

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