education lawyers

the process

Advice and Guidance

We provide advice and guidance on parent's rights and those of their child.  You may be concerned about your child’s current educational provision, their access to home tuition, your child’s school transport or their school placement.  The LA may have refused to carry out a Statutory Assessment, issued a Statement of Special Educational Needs which you feel is inadequate or may be failing to deliver the provision which your child is entitled to receive.  We also advise parents whose children are being bullied or discriminated against at school.

Many parents want their child to remain in mainstream education but want to secure an enhanced package of provision in that environment including therapeutic input such as Occupational Therapy and Speech and Language Therapy.  In other cases parents feel that a more specialist school placement is necessary.

We will review the facts and give you a clear idea as to where you stand and what action needs to be taken.

We advise parents of children and young people at every stage of their education including nursery, primary, secondary, post 16 and post 19 provision.

Your rights and the associated processes

We have put together some information and guidance to help parents new to this area of law understand their rights and how the process works, knowing that it can seem daunting at the outset.

You may already have been down some of these routes and remain dissatisfied, or you may be new to the legislation relating to Education Law and what it means for the future of your child and their education.  This information should provide you with an overview of the statutory processes. The main sections are:

• An introduction to your rights
• First steps to getting help
• Choosing a school
• Special Educational Needs
• The Statementing Process from Start to Finish
• The Statement
• Appeals and the SEND Tribunal
• Judicial Review
• Disability Discrimination Claims
• Complaints to the LA and the Local Government Ombudsman
• Admission Appeals
• School Exclusions
• Other Discrimination in Education
• Bullying in school

 

An introduction to your rights

The Law is clear that parents have the right:-

• to request an assessment of their child’s Special Educational Needs;
• to appeal to the Special Educational Needs and Disability Tribunal;
• to express a parental preference for the school they would like their child to attend;
• to appeal against a school’s refusal to admit their child;
• to appeal against a school exclusion;
• to withdraw their child from religious education and worship;
• to have access to information i.e. school records;
• to complain to the governing body of their child's school, the Local Authority and the Secretary of State.

 

First steps to getting help

If you think your child has Special Educational Needs it may help you to know that the term ‘Special Educational Needs’ has a legal definition.  Children with Special Educational Needs have learning difficulties or disabilities which make it harder for them to learn than most children of the same age.

So a child who has difficulties in the following areas could have Special Educational Needs

• reading, writing, number work or understanding information;
• expressing themselves or understanding what others are saying;
• making friends or relating to adults;
• behaving properly in school;
• organising themselves; or
• some kind of sensory or physical needs which affect them in school.

 

To establish the extent of your child’s difficulties and whether they amount to a Special Educational Need you must have your child assessed by relevant experts.  We can help you identify appropriate professionals who can assess your child and provide you with the expert opinion to fully understand your child’s difficulties and their cause.

When dealing with a school exclusion or admission appeal or any complaint it is necessary to obtain advice and professional input to assess the body of evidence available and consider what further action needs to be taken.

Choosing a school

Finding the right school for your child is one of the most important decisions you will need to make in life to ensure that that your child’s needs are met and they are educated to their potential.  Many parents tell us that they would like their child to be happy and as independent in adult life as possible.  We have a good knowledge of specialist schools and have an established relationship with many of them.  We can give you guidance as to which schools may prove to be appropriate and we would expect experts advising you to do the same.  Whilst a school may appear a good match on paper we have found it is always a very personal decision for each individual child and their parents.  Parents often visit a number of schools before identifying the right one.

Special Educational Needs

------------------------------------------------------------

The Statementing Process from Start to Finish

The Statementing process is the means by which a child’s Special Educational Needs are assessed and provided for by a Local Authority (LA).

A parent can ask the LA to undertake a Statutory Assessment of their child’s needs and the LA has 6 weeks in which to decide if they are going to do so.  If the LA refuses to undertake a Statutory Assessment parents have a right of appeal to the SEND Tribunal which must be exercised within 2 months of the LA’s decision.

The LA should carry out the Statutory Assessment of a child’s needs within 10 weeks and must seek advice from :-

• The child’s parents
• The child’s school
• A Medical Officer
• The LA’s Educational Psychology Service
• Social Services
• Any other professional the LA feels it is necessary to involve – (eg the Speech and Language Therapy Service and/or Occupational Therapy Service)

 

The LA should inform a parent within 2 weeks of completing the Statutory Assessment as to the outcome of the assessment process and whether it will issue a Statement of Special Educational Need.  In some cases the LA will issue a Note in Lieu and parents have a right of appeal against this decision to the SEND Tribunal which must be pursued within 2 months.

The ‘Statement’

A Statement of Special Educational Needs is a legal document issued by a LA and should set out each and every Special Educational Need a child has.  It must also specify provision to meet each and every one of the child’s needs.

The Statement must comply with the format set out in the relevent regulations and is divided into the following sections :-

Part 1 – Introduction
Sets out personal details including the child’s name, date of birth, address and religion.

Part 2 – Special Educational Needs
Gives a description of child’s Special Educational Needs.

Part 3 – Special Educational Provision
Sets out the provision necessary to meet each and every one of the child’s Special Educational Needs, the objectives for the Statement and the monitoring arrangements which will be made to review the child’s progress.

Part 4 – Placement
Either names a specific school or type of school where the provision set out in Part 3 is to be made available.

Part 5 – Non-Educational Needs
Describes any non-educational needs of the child.

Part 6 – Non-Educational Provision
Details any non-educational provision to meet the non-educational needs of the child.

A Statement is a legally enforceable document and unless the child’s parents are making their own arrangements, the LA must arrange all the provision set out in Part 3 of the child’s Statement.

Obtaining a Statement is a crucial step in meeting the needs of a child with complex and severe Special Educational Needs but it is often not the end of the story.  Many Statements fail to adequately identify and/or describe the nature and extent of the child’s needs.  The provision set out in Part 3 of a Statement often causes problems by failing to provide the type or level of input which is adequate to meet the child’s needs and/or by failing to specify the provision in clear and unambiguous terms so as to make it certain what provision should actually be delivered.  Provision in Part 3 of a child’s Statement should be clearly specified and quantified.  Very often, this does not happen.

The content of Parts 2 and 3 of a child’s Statement often determines the type of school named in Part 4.  There is a continuing emphasis in SEN Law that children should be educated primarily within the mainstream environment, particularly where this is the wish of the parents.  Within a mainstream environment, the need for provision to be clear and quantified is all the more important.  Where parents feel that mainstream education cannot provide for their child’s needs and seek a placement within a specialist school setting for their child, significant changes are often required to both Parts 2 and 3 of a child’s Statement.

Appeals and SEND Tribunal

Where it has not been possible to reach agreement with a Local Authority, parents can appeal to the SEND Tribunal when the LA:-

1. refuses to undertake a Statutory Assessment or a further Statutory Assessment of their child’s needs.
2. decides not to issue a Statement of Special Educational Needs.
3. issues a Final Statement or a Final Amended Statement.
4. makes a decision following an Annual Review.
5. decides to stop maintaining a Statement.
6. refuses a parental request to change the school named, if the statement is at least 1 year old, (this right of appeal only applies to state schools and where the parents’ preferred school is the same type of school currently named for the child (ie special or mainstream).

 

Any appeal must be received by the SEND Tribunal within 2 months of the LA’s decision letter informing the parents of their right to appeal.

The Tribunal has the power to order a LA to take certain action for example, making changes to the description of a child’s needs, amending the provision to be made available to the child and changing the school named in the child’s Statement.  The Tribunal can also order the LA to undertake a Statutory Assessment, issue a Statement of Special Educational Needs or to maintain a child’s Statement.

Pursuing an appeal to the SEND Tribunal can be a daunting and challenging prospect for parents.  Securing appropriate expert independent evidence and presenting a case in an effective and persuasive manner is key in securing a successful outcome.

We have particular expertise in assisting parents through the SEND Tribunal appeal process and have a very high success rate in the SEND Tribunal.  A significant number of our cases settle, in favour of the parents, before a hearing takes place and we always encourage parties to enter into mediation at an early stage if we feel agreement may be possible.

Judicial Review

Where a LA is in breach of its duty in respect of a child’s education it may be appropriate and necessary to instigate Judicial Review proceedings in order to compel the LA to meet its obligations.  The LA may be failing to properly implement the provision specified in a child’s Statement or to meet the deadlines for carrying out a Statutory Assessment.  We can advise if and when Judicial Review proceedings may be appropriate.

Disability Discrimination Claims

The SEND Tribunal also hears Disability Discrimination Claims in relation to state maintained and independent schools.  The discrimination may relate to a decision not to admit a child to the school, the provision and arrangements being made by a school for a child or a school’s decision to exclude a child.  A “disability” is defined as “a physical or mental impairment which has a substantial and long term adverse effect on a person’s ability to carry out normal day-to-day activities.”  If you believe your child has been discriminated against by their school then we can advise you on what action to take.

Complaints to the LA and the Local Government Ombudsman

We advise parents who wish to make a complaint to their LA or to the Local Government Ombudsman.  We can help you decide whether pursuing a complaint is the best course of action in the circumstances or whether an alternative option will prove more effective.

Admission Appeals

We help parents appeal against the decision of an Admission Authority if their child has not been allocated a place at their chosen school.  The appeal panel should be independent of the school and the Local Authority.  We can make representations to the panel on behalf of parents as to why their child should be admitted to the school in question.

A parent can also make a complaint to the Local Government Ombudsman if they are not happy with the way in which the panel carried out the appeal process.  We can advise parents on how to do this.

It is also possible for a parent to challenge the decision of a panel through Judicial Review.

School Exclusions

We assist parents in appeals against a decision to exclude a child from school.  A parent can appeal initially to the School’s governing body.  If this is not successful and the child is permanently excluded then an appeal can be made to an Independent Appeal Panel (IAP).  We can help parents to draft an appeal and represent them at an appeal hearing.

Parents can complain to the Local Government Ombudsman if they are unhappy with the manner in which the IAP carried out the appeal.

It is also possible for a parent to challenge the decision of an IAP through Judicial Review.

Other Discrimination in Education

A child who believes that they have been discriminated against, harassed or victimised at school can make a claim under the Equality Act 2010.  A discrimination claim on the grounds of gender, race, religion or faith or sexual orientation would be made in a County Court.

A claim for disability discrimination is usually made by the parent of the pupil.  Please refer to our section on Disability Discrimination for claims to the SEND Tribunal.

Bullying

Bullying can either be physical or verbal and can include the following behaviour:-

• Name calling
• Teasing
• Taunting
• Stealing from the victim
• Physical violence
• Making offensive comments by text, email or through social networking websites

If a school fails to address bullying you can:

• complain to the school and LA.
• apply for Judicial Review against the school or LA for failing to take appropriate steps to address the bullying.
• take out an injunction to stop the bullying.
• make a Human Rights claim if the bullying is extremely serious and has resulted in physical or psychiatric damage.
• take legal action against the school, teacher or LA for compensation for any physical or psychiatric damage.