Getting ready for the new school year

September is fast approaching and with it brings the start of a new school year. It would seem that parents now more than ever have an abundance of different types of school to choose from. Or do they? What responsibilities do the various bodies have and what schools or types of education arrangements are available to children with special educational needs (SEN)?

Parents’ duties

Parents have a duty to ensure that their child of compulsory school age receives full-time education that is suitable for their child’s age, ability, aptitude and to any special educational needs that he/she may have. This can be by attending school ‘or otherwise’. Under ‘or otherwise’ parents can choose to educate their child at home provided it is suitable as outlined above.

Local Authorities’ duties

For children and young people with SEN the Children and Families Act 2014 states that the local authority must ensure that they receive support to help them ‘achieve the best possible educational and other outcomes’. To do this the local authority has a duty to identify and assess the SEN of children and young people in their area when they become aware that these children or young people have or may have SEN.

A child who has been identified as needing more support than is generally provided in mainstream maintained schools should have an EHCP outlining the support that the local authority must make for him/her and naming a school that is considered to be able to educate the child with the additional support. Provided the support is written into the correct section of the EHCP, the local authority has a duty to provide it.

School’s duties

Children can be supported using the school’s own resources under Additional SEN Support or, if more resources may be required or more has to be understood about the child’s SEN, the school or parents can request an EHC needs assessment leading to an EHCP.

Generally, if a maintained school (mainstream or special), an Academy, a free school, a further education placement in England, a non-maintained special school or a placement that is approved by the Secretary of State, is named on the EHCP, then the child or young person must be admitted unless: the placement is unsuitable; their attendance would adversely affect other’s education; or it would not be cost effective.

Fee paying or independent special schools and special post-16 placements can apply for approval from the Secretary of State. Parents can still request a placement at schools, usually independent schools, that are not on the approved list.

The local authority has to consider the general principle that children are to be educated in accordance with parents’ wishes but key to their decision will be the additional cost to all sections of the public purse, including social services and health.

Right to mainstream education

There is a strong presumption that everyone can have mainstream education. The local authority can only refuse to name a mainstream school on the EHCP if parents do not want it and/or it interferes with the education of other children and there are no reasonable steps that can be taken to prevent this.

Types of Schools

Schools across England are funded and managed in different ways. The most common distinction is between fee paying and non-fee paying schools. Non-fee paying schools have expanded in recent years to include Academies and free schools. The main types are:

  • Mainstream with an SEN unit.
  • Special schools that only take children with an SSEN or EHCP.
  • Voluntary-aided schools which can be mainstream or special and which are usually religious or faith schools.
  • Foundation schools, which have more autonomy than maintained schools.
  • Academies that are run by a governing body, the Academy Trust, and which are independent from the local authority and can follow a different curriculum. Academies are publically funded independent schools. They have to follow the same rules on admissions, SEN and exclusions as other state schools.
  • Free schools that are funded by the government but not run by the local authority. They have more control over how they do things. They do not have to follow the national curriculum. They are run on a not-for-profit basis and can be set up by groups such as charities, universities, independent schools, parents and faith groups.
  • Pupil referral units (PRUs) are schools that operate outside normal schooling and are for children who may not fit into other schools for a variety of reasons. They are often for children experiencing behavioural problems or those who have been, or are at risk of exclusion. Some PRUs will also admit children with medical conditions and with autism. Local authorities have a duty to provide suitable education for all their children, including those who cannot attend school. Placing children in PRUs is one way to ensure that they comply with this duty. PRUs do not have to follow the full national curriculum and generally have smaller class sizes and higher staff to pupil ratios.

Other education choices

Parents can choose a combination of schools, for example, dual placement at a mainstream and a special school. They can also choose to educate their child at home full-time or part-time with some attendance at a school.

If home educating, the local authority can make informal enquiries to ensure that the child is receiving a suitable education. If the authority is not satisfied, they may serve a school attendance order. Parents are advised to keep a record of education activities followed.

If the child’s EHCP does not specify home education to be made by the local authority, the EHCP becomes legally unenforceable meaning that the local authority no longer has a statutory duty to provide support outlined in the SSEN or EHCP. Parents are advised to liaise with their local authority to ensure their child continues to receive some support.

Therefore, though there are several choices available, parents do not always get what they want and ask for. Before choosing any school, parents should do their research and visit several schools on more than one occasion and share their child’s EHCP with the prospective school to ensure that the school will be able to meet their child’s needs. If the local authority is resistant to naming the parents’ preferred school, parents need to gather suitable evidence to challenge the decision. Remember that discussions will not be all about how good the parents’ preferred school is, but about why the school put forward by the local authority is unable to meet their child’s needs.

If you want to change the school named on your child’s EHCP and are having problems, contact our dedicated special educational needs team by email at senexpertsolicitors@boyesturner.co.uk to discuss how we can help.

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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