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 EHC Needs Assessment Process from Start to Finish
- The Education Health and Care Plan
- 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
An introduction to your rights
The Law is clear that parents have the right:-
- to request an assessment of their child’s Education Health and Care 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 in school;
- organising themselves; or
- 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 EHC Needs Assessment Process from Start to Finish
The assessment 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 an Education Health and Care Needs 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 an EHC Needs Assessment parents (or the young person over 16 years of age) have a right of appeal to the SEND Tribunal which must be exercised within 2 months of the LA’s decision.
When carrying out an EHC Needs Assessment the LA must seek advice from:-
- The child’s parents and young person
- The child’s school or educational placement
- Health Care professionals
- An Educational Psychologist
- Social Care
- Any other person that the parents or young person requests, if the LA considers it reasonable
- Any other professional the LA fees it is appropriate to involve
The LA should inform a parent within 16 weeks as to the outcome of the assessment process and whether it will issue an Education Health and Care Plan. In some cases the LA will decide that an EHC Plan is not necessary and parents have a right of appeal against this decision to the SEND Tribunal which must be pursued within 2 months.
The ‘Education Health and Care Plan’
An Educational Health and Care Plan (EHCP) 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 Government has decided not to require LAs to use single national template for EHC Plans. However, it does require EHC Plans to include the following sections, seperately labelled with the letters shown:-
Views, interests and aspirations of the child and their parents or the young person.
The child/young person's special educational needs (SEN).
The child/young person's health needs which are related to their SEN.
The child/young person's social care needs which are related to their SEN
The outcomes sought for the child/young person
The special educational provision required
Any health provision reasonbly required by the learning difficulties or disabilities which result in the child/young person having SEN.
Any social care provision which must be made for a child or young person under 18 resulting from the Chronically Sick and Disabled Persons Act 1970.
Any other social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN.
The name and/or type of placement to be attended by the child/young person
Where there is a Personal Budget the details of how it will support outcomes, the provision it will be used for and the arragnements for any direct payments.
The advice and information gathered during the EHC Needs Assessment
An Education Health and Care Plan 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 Section F of the child’s Plan.
Obtaining an Education Health and Care Plan 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 Plan fail to adequately identify and/or describe the nature and extent of the child’s needs. The provision set out in Section F of an EHC Plan 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 Section F of a child’s Education Health and Care Plan should be clearly specified and quantified. Very often, this does not happen.
The content of Sections B and F of a child’s EHC Plan often determines the type of school named in Section I. 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 Secionts B and F of a child's EHC Plan.
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:-
- refuses to undertake an EHC Needs Assessment or a further Re-Assessment of their child’s needs.
- decides not to issue an EHC Plan.
- issues a Final EHC Plan or a Final Amended EHC Plan.
- makes a decision following an Annual Review.
- decides to stop maintaining an EHC Plan.
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 and in many cases a parent has to consider mediation before being able to lodge an 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 EHC Plan. The Tribunal can also order the LA to undertake an Assessment, issue an EHC Plan or to maintain a child’s EHC Plan.
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.
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 EHC Plan or to meet the deadlines for carrying out an Assessment or review. 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.
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.
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.