Education

An Article by Robert Love,
Head of the Education Department, Langley Wellington

The World of Special Educational Needs (SEN) and the Education Act 1996

Does your child have SEN or do you think he may have SEN? How many times are parents told that:-

• There are many children with more severe needs than your child's.
• You are only being a pushy parent
• The LEA does not have any money anyway.

I think anyone becoming involved in the field of SEN and Education Law has to be driven by personal circumstances. In my case my son Jonathan was born 26 years ago with severe brain damage. He is still unable to speak and has a developmental age of 2/3 but he gets a lot of fun and pleasure out of life in his current adult placement. After a number of discussions with our Local Education Authority (LEA) and an appeal we were eventually successful in securing Jonathan's placement at a residential special school. This was at the time when the Education Act 1981 was in force. I know how draining and traumatic parents' battles are with LEAs. You just feel that no-one is listening to you.

Subsequently the Education Act 1993 created for the first time a whole package of measures designed specifically for children with special educational needs. This Act also created the Special Educational Needs Tribunal (SENT) - as it was then known, which came into existence on 1st September 1994.

A child has special educational needs if he or she has a learning difficulty, which calls for special educational provision to be made. A child is considered to have a 'learning difficulty' where:

•  The child has a significantly greater difficulty in learning than the majority of children of his age.

•  The child has a disability, which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age in schools within the area of the Local Education Authority.

•  The child is under the age of five years and is, or would be, if special educational provision were not made for him, likely to fall within paragraph (a) or (b) when over that age.

"Special Educational Provision" means:

•  In relation to a child who has attained two years, educational provision which is additional to or otherwise different from the educational provision made generally for children of his age in schools maintained by the LEA (other than special schools) or grant maintained schools in their area and

•  In relation to a child under that age educational provision of any kind.

Parents or a responsible body (a school for example) can request an LEA to carry out an assessment of a child's SEN. The LEA can initiate an assessment of its own volition. If the LEA refuses to carry out a Statutory Assessment following a request having been made by a parent or a responsible body the parent may appeal to SENDIST.

Parents will need to obtain their own expert reports and submit these to the LEA and SENDIST. If a Statutory Assessment is carried out, whether by order of the Tribunal or the LEA agreeing to it then the LEA has to obtain certain advice, e.g. educational, psychological and medical advice as well as advice from other agencies such as Social Services. Parents have a right to be present at any assessments which are carried out in respect of their child.

Further rights of appeal exist to SENDIST against an LEA's refusal to make a Statement of Special Educational Needs for a child following the carrying out of a Statutory Assessment or against the contents of a Statement of Special Educational Needs.

There are statutory time limits for the carrying out of the Statutory Assessment and a time in which the LEA have to respond to any parental request. If the LEA decide to make a Statement of Special Educational Needs, Part 2 oheatherlove10@hotmail.com
f the Statement has been likened to a medical diagnosis of the child's educational needs and Part 3, a prescription to meet the child's educational needs (see R v Secretary of State for Education and Science ex parte E [1992] 1 FLR 377, CA).

The provision proposed by the LEA must normally be quantified e.g. in terms of hours of provision and staffing arrangements etc - see paragraph 8.37 of the Code of Practice and also L v Clarke and Somerset County Council [1998] ELR 1998 (QBD). Many LEAs will not specify any levels of provision at all in their Statements seeking to maintain the right of flexibility. However, when it comes to enforcing the terms of a "flexible" Statement of Special Educational Needs, difficulties are normally experienced. The aim from a parental point of view must therefore be to get a Statement as specifically worded as possible. The aim from the LEA's point of view is not to be tied down to any specific levels of provision. Many LEAs like to provide funding via a banding system . This allocates a sum of money to the school to spend on the child. It is far better to have a specifically worded Statement providing for any sum of money to be converted into specific teaching and non-teaching hours and therapeutic input etc.

Parents have the right of appeal to SENDIST:

• If the LEA refuse to carry out a Statutory Assessment having been requested to do so by a parent or responsible body.
• Where the LEA refuse to make a Statement of Special Educational Needs following the carrying out of a Statutory Assessment.
• Against the contents of a Statement of Special Educational Needs (whether when first issued or subsequently amended by the LEA, both in terms of the needs identified, the provision specified and the school named in the Statement)
• Against the LEA

  We attach a copy of a letter we have received from the LA here which we understand has been sent to the Tribunal.  In the light of this the appeal is now regarded as being successful and the hearing scheduled for 9tyh February will be cancelled.  Please formally confirm the position.

  's refusal to change the state school named on the child's Statement of Special Educational Needs to another state school. Here it is worth pointing out that no right of appeal exists if the parent asks the LEA to change the state school named on the child's Statement to an independent school.
• Against the LEA's decision to cease to maintain a child's Statement of Special Educational Needs. An LEA is now required to maintain the child's Statement in these circumstances pending determination by SENDIST by such an appeal.

The Special Educational Needs and Disability Act 2001 came into force on 2nd January 2002 and amended the Education Act 1996 by:

• strengthening the right of children with special educational needs to be educated in mainstream schools;
• requiring Local Education Authorities to arrange for parents of children with special educational needs to be provided with advice and information of special educational needs matters and means of resolving disputes with school and LEAs through mediation.
• obliging schools to tell parents where they are making special educational provision for their child and allowing schools to request a statutory assessment of a pupil's special educational needs.
• extending the remit of SENDIST to include disability discrimination claims.

SENDIST appeals can determine issues such as:

• The delivery of set amounts of speech and language therapy
• The delivery of occupational therapy (which many LEAs still see as a non-educational provision)
• Specific levels of specialist teaching and in-class support.
• The appropriate school to be named in the Statement. Both independent schools and non-maintained schools can be named in a child's Statement of Special Educational Needs with the LEA thereby having to accept responsibility for funding the cost of the child's placement at that school.

Are there any other avenues open to parents?

Yes there are. Parents can appeal to the High Court on a point of law against a decision of SENDIST; it is also possible to provide for Judicial Review of an LEA's failure, for example, to comply with the relevant statutory time limits for completion of a Statutory Assessment or for failure to deliver speech therapy, occupational therapy or any other aspect of the child's Statement of Special Educational Needs.