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Special educational and disability needs (SEND) provision is in crisis. A number of recent reports from the Local Government and Social Care Ombudsman and the recent SEND Inquiry  demonstrate the very real impact on the SEND Community of the difficulties many face accessing provision, which meets a child or young person’s SEND needs. With the passing of the Coronavirus Act 2020 and recent ‘Notice’ issued by the Secretary of State impacting core Children & Families Act 2014 statutory duties, it seems highly likely that securing appropriate provision is set to become even more of a challenge.

What are Special Educational Needs (SEN)?

The definition of SEN is broader than it used to be under the previous Statement of Special Educational Needs framework because of the changes introduced by the Children & Families Act 2014.

A child or young person is considered to have SEN if they have a learning difficulty or disability, which calls for SEP to be made for them.

In essence, this means that if your child or young person finds it harder to learn than the majority of others and continues to struggle even with targeted, additional support, it is likely that they will have SEN.

What does Special Educational Provision (SEP) mean?

Provision that is additional to or different from provision made generally for others of the same age in mainstream school institutions. For a child under 2, SEP means educational provision of any kind.

If my child or young person has a disability, does this mean they have SEN, which requires SEP to be made?

No. It is the impact of a child or young person’s disability on their ability to access, participate and engage in education which has to be considered in order to determine whether the child or young person has SEN which requires SEP to be made.

Where should I start if my child or young person may have SEN?

The starting point is generally to raise your concerns with your child or young person’s school or nursery. Every school is required to have a Special Educational Needs Co-ordinator (SENCO), a person who is appointed to take overall responsibility for co-ordinating SEN provision. It is usually a good idea to notify the SENCO of any concerns you have raised with your child or young person’s teacher so you can work together to ensure your child or young person is provided with additional support from the school’s in-house funding. If the support required goes beyond the existing available assistance, and your child or young person’s needs cannot be met, an EHCP may be required.

Are schools under a duty to ensure a child or young person is provided with SEN provision?

Yes. The duty placed on maintained schools, academies and independent schools is not however an absolute duty. It is a duty to use their ‘best endeavours’ to ensure that a pupil’s SEN or disability does not place them at a disadvantage.

What is Assess, Plan, Do, Review?

Assess, Plan, Do, Review is a cycle of special educational provision which is used in England. This model requires schools to liaise with the child or young person, parents, and relevant professionals to establish what special educational needs the child or young person might have. An Individual Education Plan (IEP) may be used by the school to record the action taken. The school is responsible for planning, implementing and keeping the special educational provision under review. A large number of children and young people with special educational needs are supported using this approach.

What is an Education, Health and Social Care plan (EHCP)?

An EHCP is a legally-binding document which sets out all of the education, health and social care needs of a child or young person and the support required to meet those needs. It therefore extends beyond simply naming a school and provides the opportunity to pull together and co-ordinate all the provision required to meet identified needs.

How does a Local Authority determine whether an EHCP is necessary? Is there an assessment process?

A Local Authority must secure an EHC needs assessment if, after considering the views and evidence provided by a parent or young person, it is of the opinion that:

  1. A child or young person has or may have SEN; and
  2. It may be necessary for special educational provision to be made in accordance with an EHC plan.

Where, in light of an EHC needs assessment, it is necessary for SEP to be made for a child or young person in accordance with an EHC plan –

  • The Local Authority must secure that an EHC plan is prepared for the child or young person, and
  • Once an EHC plan has been prepared, it must maintain the plan.

Click here to access our information sheet which explains the assessment process, timescales, and possible outcomes in more detail.

If, following an EHC needs assessment, a Local Authority agrees to issue an EHCP, what happens next?

The Local Authority has an obligation to provide a parent, young person or representative with a draft EHCP for comment.

You must be provided with at least 15 calendar days to submit your comments or representations relating to the draft plan.

A guide to the principles a Local Authority should have regard to, and what a draft EHCP should include, can be found by clicking here.

What decisions can be challenged by way of an appeal to the SEND Tribunal?

  • A refusal to conduct an EHC needs assessment.
  • A refusal to issue an EHCP.
  • The contents of a final EHCP – Sections B, F and/or I are appealable.

If the appeal involves a challenge to Sections B, F and/or I, and the case is part of the National Trial, it is also possible to ask the Tribunal to make non-binding recommendations with regard to the health & social care elements of an EHCP.

  • A decision to cease to maintain a child or young person’s EHCP.

More information regarding the process for challenging these decisions can be found by clicking here to access our SEND Appeals and Challenges information sheet.

If I want to appeal to the SEND Tribunal, is mediation compulsory?

A parent or young person has a right to mediation and can only appeal to the Tribunal after obtaining a “mediation certificate” unless the appeal relates solely to Section I of the EHCP (the named placement).

This requires a parent or young person to approach and consult with a mediation advisor (the Local Authority’s decision letter must provide details of who to contact), receive advice, and inform the mediator whether they wish to attempt mediation or proceed to appeal.

The mediator will either issue a mediation certificate confirming after consultation it was agreed mediation is not appropriate, or, once mediation has taken place, to confirm a mediation was convened.

Are there time limits to appeal to the Tribunal?

Yes. If you wish to appeal to the SEND Tribunal, an appeal must be lodged within 2 months of the date of the Local Authority’s decision letter, or, alternatively, within 1 month of the date of a mediation certificate.

The general rule in SEND Tribunal proceedings is that each party is responsible for meeting its own costs unless there are, rare, exceptional circumstances, necessitating a costs application.

We understand that many may be concerned about the likely costs of obtaining legal representation in an EHCP dispute. Rest assured that at Lester Aldridge we are flexible and can offer flexible payment options by agreement.

How does the Coronavirus Act 2020 impact special educational needs provision and EHCPs?

In response to the Coronavirus pandemic, Parliament passed the Coronavirus Act 2020. Changes to SEP provided for within the Children & Families Act 2014 included to the core Section 42 absolute duty to provide SEP in accordance with Section F of a child or young person’s EHCP and to key timings where the ‘Coronavirus exception’ applies.

Whilst the Secretary of State issued ‘Modification Notices’ in May, June and July, downgrading the core Section 42 absolute duty to provide SEP, to a duty of ‘reasonable endeavours’, no further Modification Notice was issued on 1 August 2020.

This means that the pre-Coronavirus position – i.e. the absolute duty to provide SEP is reinstated. Local Authorities, must, therefore ensure a child or young person is provided with the SEP required to meet SEN. For example, if a child or young person requires speech and language therapy to meet communication needs, this must be provided without exception.

More information about the updated Guidance published on 31 July 2020 following the Secretary of State’s announcement on 2 July 2020, an explanation of the modifications to key timings, and preparing to go back to school in September, click here to access our recent article.

When are these changes effective?

From 1 May 2020 until 25 September 2020. The effectiveness of the Regulations has to be reviewed during this period. It is expected that an announcement will be made in August as to whether the Regulations which give the power to modify key timings will be extended beyond 25 September 2020.

Have children’s social care duties changed?

No. The guidance document (available by clicking here) provides practical guidance for social workers with regard to how to meet children’s social care needs within the constraints of the pandemic.

What is the eligibility criteria for securing children’s health and social care support?

More information is available by clicking the links below to access our:

Should the health and social care elements of an EHCP be completed?

Yes. Often we find that the health and social elements of a child or young person’s EHCP are left blank or partially complete (i.e. Sections C,D, G, H1 & H2).

This is wrong. One of the fundamental purposes of an EHCP is to provide the opportunity to pull together and co-ordinate all of the provision required to meet a child or young person’s education, health and social care needs. If the necessary health and social care needs assessments required to complete these sections of a plan have not been completed, and these parts of the plan are left blank, an opportunity to create meaningful rights to provision has been missed.

Useful SEND Resources

Please use the links below to access some useful SEND resources the Community Care team has collated:

How can our special educational needs solicitors help?

At Lester Aldridge, our special educational needs lawyers provide specialist advice and support to parents, young persons, and representatives to help them access education, health and social care services  using an EHCP.

Examples of the types of special educational needs law issues we can assist with include:

  • Advising on the availability of provision.
  • Requesting an EHC needs assessment from a local authority.
  • Challenging decisions to refuse to complete an EHC needs assessment.
  • Advice and representation throughout the EHC needs assessment process.
  • Challenging decisions to refuse to issue an EHCP following an assessment.
  • Reviewing and amending draft Education Health and Social Care Plans (EHCPs) to ensure an EHCP is fit for purpose and assistance to negotiate amendments to a plan.
  • Challenging the contents of an EHCP once a plan has been finalised – i.e. Sections B (SEN), Section F (SEP), or Section I (named placement).
  • Challenging decisions to cease to maintain an EHCP.
  • Providing representation at mediation and or to appeal to the SEND Tribunal.
  • When an appeal is underway, assistance to negotiate amendments to a child or young person’s EHCP through the Working Document process.
  • Representation at EHCP Annual Reviews, particularly in cases where the Section I school placement may not be working and consideration need to be given to alternative provision and/or a change to the named placement.
  • Questioning failures to implement SEND provision or comply with statutory duties through the appropriate complaints procedure or possibly judicial review proceedings.
  • Examining failures to provide sufficient funding to schools within a local authority’s area to deliver SEND provision.

Click on the links on the right-hand side under the heading ‘related files’ to view more information, download or print our freely accessible SEND law information sheets.

How can an Education/SEND law case be funded?

Please see the funding options available.

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