Special educational and disability needs (SEND) provision is in crisis. The recent wave of SEND crisis campaigns and the recent National SEND Crisis March reported on extensively by the media demonstrate the very real impact on the SEND community of the difficulties many face accessing appropriate provision.
The latest Department for Education statistics show the number of children and young people with SEND or education, health, and social care plans (EHCPs) in England has increased by 34,200 (or 11%) since 2018. The total number of children and young people with statements of SEN or EHCPs has increased each year since 2010.
These statistics do not of course account for those children or young people who cannot access an education, health and social care (EHC) needs assessment, or for whom a local authority refuses to issue an EHCP after completing an EHC needs assessment.
It is no surprise therefore that cuts to central government spending on SEND provision, combined with the increasing demand, means that so many children, young people and their parents are struggling to access appropriate education provision.
How can our education solicitors help?
At Lester Aldridge, our lawyers provide specialist advice and support to individuals and/or their representatives to help them access education, health and social care services from the NHS or Local Authority, in a way that meets their needs and preferences.
Examples of the types of education law issues we can assist with include:
- The availability of Special Educational Needs & Disability (SEND) 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.
- Reviewing and amending draft Education Health and Social Care Plans (EHCPs) to ensure an EHCP is fit for purpose.
- Challenging decisions to refuse to issue an EHCP because of an EHC needs assessment or amend an EHCP. Sometimes this may require an appeal to the First Tier Tribunal or resolution by mediation.
- Questioning failures to implement SEND provision through the appropriate complaints procedure or 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 to view more information, download or print our freely accessible education law / SEND law information sheets.
How can an Education/SEND law case be funded?
Please see the funding options available.
Frequently Asked Questions
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.
Previously a child had SEN if he or she had a learning difficulty, which called for special educational provision (SEP) to be made. Now, a child or young person has 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.
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.
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.
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.
In theory 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.
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.
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.
In order to secure agreement by a local authority to issue an EHCP, it must be demonstrated that it is necessary for ‘special educational provision’ (SEP) to be made. A Local Authority will determine whether it is necessary for SEP to be made by completing an assessment. This is a two-stage process whereby a screening decision is made to decide whether or not SEP may be necessary. The second stage is to determine whether to conduct a full education, health and social care (EHC) needs assessment. It is the EHC needs assessment that is used to inform the local authority’s decision as to whether it is necessary to issue an EHCP.
A Statement of SEN is a legally binding document that is drawn up by a Local Authority. It sets out the child’s SEN and the educational provision that they require to meet those needs. The purpose is to ensure that the child receives an adequate level of educational provision at a suitable school placement.
Statements have been replaced by EHCPs as a result of the Children & Families Act 2014. The idea being that an EHCP should provide a more holistic plan which pulls together all of a child or young person’s EHC needs. All children with a Statement should have been transferred to an EHCP since 1 April 2018. A transition meeting should be held before your child is transferred from a Statement of SEN to an EHCP.
Yes. The appropriate form of challenge will depend on the facts of each case. It may be possible to challenge through a complaint, use of disagreement resolution services, mediation, or an appeal to the Tribunal. Any appeal to the Tribunal must be lodged within 2 months of the date of the local authority’s decision letter. Alternatively, within 1 month of the date of a mediation certificate.
The length of time it takes to resolve a SEND dispute really depends on the type of issue and the method of challenge taken.
- If mediation is appropriate, the local authority has 30 days to arrange the mediation once the mediator has notified the local authority of a young person or parent’s wish to mediate.
- If mediation does not resolve all the issues, the dispute relates to Section I (the named education institute), or the mediator agrees that mediation is not suitable, an appeal to the Tribunal can take a number of months to conclude. It is becoming increasingly common for Tribunal hearings to be vacated and re-scheduled because of the increase in the number of appeals to the Tribunal and the resources available to conclude the appeals.