The law around special educational needs can be confusing and complex. We have compiled a list of frequently asked questions below as an introduction.
We would always recommend seeking specialist legal advice because there are many factors that need to be considered and much depends on the child in question. For initial information from our expert special educational needs solicitors get in touch now on [email protected] or call 0800 884 0723.
A. Is your child struggling is school? Has additional support been provided but they are still struggling? If so, they may have special educational needs.
There is a legal definition for special educational needs but, in essence, if your child finds it harder to learn than the majority of their peers and continues to struggle despite extra targeted support, then they may have special educational needs.
A. When your child’s school identifies that they may have special educational needs, the class teacher, with the help from the Special Educational Needs Coordinator (SENCo), should provide additional support.
The school should involve you in the discussion(s) about how much support your child needs. However, the amount of support a school can provide ‘in-house’ is limited to the amount of funding that it has available to them for each child.
If the support that is needed requires specialisms beyond that available in a school, or an amount of support which goes beyond the funding available, it is possible the SEN additional support may not be sufficient and you and/or the school may feel that you need to ask the local authority to assess your child’s special educational needs via an Education, Health & Care (EHC) needs assessment.
A. The local authority will conduct an EHC needs assessment if they think that your child may have special educational needs and that those needs might need the support of an Education, Health and Care Plan (EHCP). The local authority must complete the assessment within 16 weeks and, if it decides to issue an EHCP, do so within 20 weeks of the original request. See our factsheet The EHC needs assessment for more information.
If the local authority refuses to conduct an EHC needs assessment or if they refuse to issue an EHCP following their assessment, you will have a right to appeal to the Special Educational Needs and Disability Tribunal (SENDIST). To avoid an appeal it is advisable to get specialist legal advice before you submit your request for an EHC needs assessment to ensure that you have all the necessary evidence.
If you wish to make an appeal, you will need to contact your mediation service within 2 months and then send an appeal form to the SENDIST once the mediation service send you the ‘mediation certificate’.
The appeal process takes approximately 20 weeks to reach hearing and a further 2 weeks to receive the decision. If your appeal is a phase transfer appeal (e.g. primary to secondary schools) the appeal process will be shorter, approximately 12 weeks.
A. A Statement of Special Educational Needs (SEN) details your child’s educational needs and provision that they require to meet those needs. The Statement is circulated to everyone teaching your child so that they are all clear about what they need.
The Statement is a legal document that enshrines a child’s right to provision that is listed under Part 3 of the Statement. The local authority must provide this provision, thus providing protection at a time of limited local authority budgets.
The Education Health and Care Plan (EHCP), which will gradually replace Statements from September 2014, is also a legal document. The plan will give your child a right to receive provision for their education, health and social care needs.
A. A Statement of special educational needs (SEN) is a legally binding document that is drawn up by a local authority. It sets out the child’s special educational needs and the educational provision that they require to meet those needs. The purpose of the Statement is to ensure that the child receives an adequate level of educational provision at a suitable school placement.
The Statement is made up six parts:
For more information, please see our factsheet What is a Statement of SEN and Education, Health and Care Plan?
A. Introduced in September 2014 the Education, Health & Care Plan or EHCP is a document which sets out the education, health and social care needs your child or young person has and the support that is necessary to cater for those needs. The ‘gateway’ for the EHCP is to have special educational needs, although the EHCP itself also covers health and social care needs and provision.
The EHCP is a legally binding document. It is binding on not only the local authority, but also on local health services (Care Commissioning Groups).
The current SEND Code of Practice gives guidance, but does not say exactly what the EHCP should look like. This means that every local authority may prepare the document so that it looks different. The document should be separated into the following sections:
A. To transfer from a Statement of SEN to an Education, Health and Care Plan (EHCP), a transition process must be followed. You and the education placement must be given at least two weeks advance notice of this process and the purpose of it.
As part of the transition process the local authority has to complete a new EHC needs assessment (see our factsheet The EHC needs assessment for more information). Until the assessment and new EHCP is finalised, the Statement of SEN remains in place and is enforceable.
The transition meeting can take place at any point during the transition process. During the meeting you will be given the opportunity to express your and your child’s wishes and desires and to inform the ‘Outcomes’ section of the EHCP. The meeting will also discuss what further information and advice the local authority needs to gather as part of the EHC needs assessment.
Statutory guidance states that the local authority does not have to seek any advice or arrange assessments where an assessment has been carried out recently and if you, the school and relevant experts agree that the findings are sufficient for the purposes of an EHC needs assessment. Before you take the decision to agree that no further assessment is required you should seek specialist legal advice.
A. The Children and Families Act 2014, along with guidance, sets out that mediation must at least be considered before an appeal to the Special Educational Needs and Disability Tribunal (SENDIST) can be started. This does not apply when the appeal is about the school placement only.
When the local authority writes to you with a decision it must also set out details of the local mediation service that it has decided to use.
Before you can appeal you must first make contact with the mediation service. You will have to do so within two months of the date on the decision letter sent by the local authority.
Once you have either completed mediation, or informed the mediation service that you do not want to go through with mediation, you will be issued with a Mediation Certificate. You will need to send this along with your appeal papers to the SENDIST to start an appeal.
For further information, see our What is mediation? factsheet.
For children under 5 years the EHCP/Statement should be reviewed more frequently. In this instance an EHCP should be reviewed every 3-6 months and a Statement should be reviewed biannually.
A meeting will be held with parents, the child (if able), the local authority, the school and all the professionals involved, to discuss the child’s progress over the previous 12 months and consider whether amendments need to be made to the child’s EHCP/Statement. For children with an EHCP the review will also focus on the Outcome and Targets section of the ECHP and decide whether or not they need to be changed.
After the meeting, the head teacher will submit an Annual Review report to the local authority with or without requested amendments to your child’s EHCP/Statement. The local authority will consider this and either issue an amended proposed EHCP/Statement or will decide not to amend it. Parents can make an appeal against the contents of the EHCP/Statement once it is finalised or against the local authority's refusal to amend the EHCP/Statement.
The local authority may use the review meeting to initiate the transfer process from a Statement to an EHCP. If your child is due to make a significant transfer (e.g. from primary school to secondary school) the Annual Review meeting should be changed to a transition meeting in which changing your child’s Statement to an EHCP will be discussed. See our factsheet How will my Statement change to an EHCP? for more information.
A. If you do not agree with the proposed amendments you will have 15 days to respond and/or request a meeting with the local authority. The authority must consider your requested amendments but does not have to incorporate these into the final EHCP.
If you are unhappy with the final EHCP you will have two months in which to appeal to the Special Educational Needs and Disability Tribunal (SENDIST).
A. The Special Educational Needs and Disability Tribunal (SENDIST) considers parents’ appeals against the decisions of local authorities about children’s special educational needs where the parents cannot reach agreement with the local authority. It also handles claims of disability discrimination against schools.
What the SENDIST can look into is:
The day to day paperwork of the SENDIST is dealt with by a clerking team. The SENDIST that will hear your appeal will be made up of a Panel of 3 (or rarely 2) people. The Panel will be made up of a lawyer (who is the Chair person) and 1 or 2 professionals with professional experience of children with special educational needs.
A. In the first instance you should discuss your concerns with your child’s class teacher and Special Educational Needs Coordinator (SENCo). The contents of your child’s Education, Health & Care Plan (EHCP) or Statement of SEN will be discussed at your child’s Annual Review. If you have very serious concerns that cannot wait for the Annual Review then you can request an early review.
Many EHCP/Statements are written in vague terms and are unhelpful to teachers as well as being unenforceable. For peace of mind we can conduct a Health Check of the EHCP/Statement and advise on its adequacy, including how to correct any problems.
You should prepare for the Annual Review by writing your own report and making it as detailed as possible. You should state what you want for your child and provide as much evidence as possible to support your view. You can also request for the head teacher to ask any professionals who know your child and to write a report and/or attend the Annual Review meeting.
After the Annual Review the head teacher will submit a report with any recommendations to amend the EHCP/Statement to the local authority. If the local authority amends the EHCP/Statement and you are still unhappy with the description of your child’s educational needs, the educational support and/or placement, you can appeal to the Special Educational Needs and Disability Tribunal (SENDIST). You can also appeal to the SENDIST if the authority decides not to make any amendments.
We can help you to prepare for the Annual Review. We can help you to draft your report and advise on which experts to invite to the meeting. We can also help you through the entire appeal process. Get in touch with one of our dedicated special educational needs solicitors now on 0800 884 0723 or email [email protected].
A. Before you are able to start an appeal with the Special Educational Needs and Disability Tribunal (SENDIST), you will have to at least consider mediation. This will involve speaking with a mediator who will explain the mediation service to you. See our What is mediation factsheet for more information.
The whole process of appeal can take up to 20 weeks. However, if there is an urgent issue a request can be made to fast-track the appeal to 12 weeks. All secondary school transfer appeals are automatically allocated a 12-week timetable.
Once you have sent your appeal form to the SENDIST, a timetable for your appeal will be issued. These are called ‘Case Management Directions’ which set out the timetable for the rest of the appeal.
Once you have sent in your appeal, the local authority will make its initial response. You and the local authority will then be given until a set date (normally 16 weeks from the date on which your appeal is started) by which to present all your evidence and legal arguments. The SENDIST (or the local authority) will then make bundles to include all the paperwork and you will attend a final hearing.
There are complex rules about how a SENDIST appeal must be conducted, both during the period before and during the final hearing. For more information, please see our factsheet The Appeals Process.
For specialist advice from our special educational needs solicitors get in touch now on 0800 884 0723 or email [email protected].
A. You may want your child to go to another school for a variety of reasons including:
What you should do depends on the reasons behind the move. It may be that your child needs to be reassessed so that the school understands your child’s needs more fully. A reassessment could recommend more provision which means that your child’s Education, Health & Care Plan (EHCP) or Statement of SEN should be amended. It may also provide evidence for the need of a more specialist school. Essentially you will be asking for your child’s EHCP/Statement to be amended. If the local authority is resistant to the change you will need to prepare strong evidence to challenge the decision and may eventually have to appeal to the Special Educational Needs and Disability Tribunal (SENDIST).
If you move to a new authority, your EHCP/Statement must be transferred to the new authority which will have the same duties in law if it had issued it. The new authority may decide to carry out its own review of the EHCP/Statement but in the meantime any provision in the EHCP/Statement must be provided immediately.
Prior to your move you should contact the new local authority, let them have your child’s EHCP/Statement and visit schools in the new area. If you are unhappy with the school that the local authority proposes to name, you can try to negotiate with them or ultimately you will have to appeal to the SENDIST.
We can advise on reassessments, instructing independent experts to assess your child, liaising with the local authority and appealing to the SENDIST.
A. School transfer can occur when your child moves from:
You should prepare for the move well in advance by visiting schools (or colleges) and keep notes of your findings so that this can be presented to the local authority if necessary. Your child’s next school should be discussed at their Annual Review a year or two before the move. This is to allow you and your child’s teachers to discuss and prepare for your child’s next placement in good time before the move. A local authority officer should be encouraged to attend the Annual Review.
Once you have named your preferred school, the local authority should consult with that school. The local authority will take many factors into consideration, most importantly whether the school can meet your child’s needs and the cost of the placement. It may decide not to name your preferred school in your child’s Education, Health and Care Plan (EHCP) or Statement of SEN which generally has to be amended by 15 February in the year of school transfer.
If you disagree with the school named on the EHCP/Statement you will have the right to appeal to the Special Education and Disability Tribunal (SENDIST).
A. The Special Educational Needs and Disability Tribunal (SENDIST) will base its decision on the evidence that is presented to it. Getting good evidence is therefore essential for the success of your case.
You can strengthen your case by instructing independent experts, such as an educational psychologist, who can provide written and oral evidence to the SENDIST. It is important to use experts who have knowledge of your child’s special educational needs and who are experienced in the tribunal process, including giving oral evidence.
We have established links with a wide range of independent experts who we can instruct on your behalf, thereby helping to maximise your prospects of a successful outcome.
To discuss your special educational needs with a dedicated solicitor get in touch now on 0800 884 0723 or email us at [email protected].
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