An article from SEN Magazine 20th November 2017

Ed Duff explains how the law can help parents seeking support for their child with SEN

Ed Duff is Senior Associate Solicitor, Education Law Department at HCB Solicitors:

www.hcbgroup.com

https://senmagazine.co.uk/home/articles/senarticles-2/families-know-your-rights

Ed Duff explains how the law can help parents seeking support for their child with SEN

If your son or daughter is struggling to access school, keep up with their peers, or has a physical or learning disability, they may have special educational needs (SEN).


In England, there is a system of support for learners with SEN which is intended to ensure SEN are properly identified and catered for. The vast majority of learners with SEN will be supported in school. However, for those with the most complex needs, additional assessment, support and funding is available from the local authority.

If you think your child may have SEN, the first step will be to speak with your child’s teacher or nursery class leader. They will then speak with the member of staff appointed to manage SEN – the special educational needs coordinator (SENCO).

What should schools do?

If, following discussion with you, the school, college or nursery, agree that your child has SEN, a plan for additional support should be made. This plan should follow the “assess, plan, do, review” model: assess the need; plan the support; do the work with the young person; and review any progress and modify the plan accordingly.

The review stage should normally be at the end of each term and the plan stage at the beginning of each term. Parents should be involved in agreeing targets for the programme, and you should be clear on the support that is being provided, by whom and how the progress will be monitored and evaluated.

If your child’s school, nursery or college are unhelpful in providing support, or the support they provide is not sufficient, it is possible to seek additional support from your local authority.

What if the school can’t or won’t help?

If your child requires support beyond that which their school, college or nursery can provide, it is possible to secure support from your local authority. This support will be through a document called an education, health and care (EHC) plan. This is a legally binding document that sets out the support and school placement your child should receive. The process of securing an EHC plan can be difficult and is explained below.

EHC needs assessment 
The first stage is to request an EHC needs assessment. As long as you have not requested an assessment in the last six months, your local authority must consider the request. Within six weeks of the request, the local authority must confirm whether it will make the assessment. 

An assessment must be completed if your child has SEN and the provision they require might mean that an EHC plan is necessary.

If the local authority agrees to make an assessment, the process should take ten weeks. The local authority must secure advice from you, your child, your child’s educational placement, educational psychologist, medical professionals, social care and any other experts you “reasonably request”. It is very important to be clear with your local authority what assessments you want undertaken from the outset.

If the local authority refuses to make an EHC needs assessment, you have a right of appeal to the Special Educational Needs and Disability Tribunal (SENDIST).

Draft EHC plan 
On the basis of the information obtained during the EHC needs assessment, the local authority will decide if it is necessary to issue an EHC plan for your child. There is no set format for these plans and each authority uses its only layout. It must, however, set out your child’s education, health and social care needs, the provision for those needs, their educational placement and any personal budget arrangements.

If the authority refuse to make a draft plan, you will again have a right of appeal to SENDIST.

If your local authority consider that your child does need an EHC plan, you will be issued with a draft EHC plan. Once you receive a draft plan, you will have 15 days to make representations about its content. You will also be expected to express a preference for a school or educational institution that you want your child to attend.

Final EHC plan
Following receipt of your representations regarding the draft EHC plan, the local authority will prepare a final plan. The local authority must only make changes to the draft following your representations. It cannot make any other changes. The final EHC plan must name either a specific school or a type of school. The school named in an EHC plan is the school that your child or young person must attend, unless you make alternative arrangements. If the school named is a fee-paying school, the local authority will be liable for those fees unless you have reached an alternative agreement with the authority.

If you have expressed a preference for a particular school, even if it is an independent school, there is typically a strong presumption in favour of that placement. The local authority can refuse to name your preferred school only if it is unsuitable, it is significantly more expensive than another suitable school and/or admitting your child to the school would negatively impact the education of other pupils at the school.

If you disagree with the description of your child’s educational needs, educational provision or the placement named, you will have a right of appeal to SENDIST.

Appeal to SENDIST

The local authority may make decisions that you do not agree with which can be challenged to the SENDIST, including:

  • a refusal to make an EHC needs assessment
  • a refusal to issue an EHC plan following an EHC needs assessment
  • the content of an EHC plan
  • the school named in an EHC plan
  • changes made to an EHC plan after an annual review
  • a refusal to make a change to an EHC plan after an annual review.

An appeal is started by an appeal form. In many cases, you will need to secure a mediation certificate before you are able to start an appeal. You should check with the Tribunal or take specialist legal advice about whether your type of appeal requires a mediation certificate.

Once the Tribunal receives the appeal form, it will process the appeal and apply a timetable to it. The Tribunal is currently listing hearings using a standard 12-week process. The timetable is normally as follows:

  • Week 5 – the local authority must send its response to your appeal
  • Week 9 – all further evidence must be submitted
  • Week 12 – the final hearing takes place.

Your appeal timetable will be set out in a letter the Tribunal will send you. It is very important that you read that letter carefully and make a note of all the relevant dates. You must comply with every deadline.

It is very important to be specific when lodging grounds for appeal. Once the case is presented, the local authority will respond. You will receive a copy of this response, following which you will need to file all additional evidence approximately one month before the final hearing. The Tribunal will only allow you to provide evidence after the deadline if it gives you permission to do so.

Witnesses can be called to attend the final hearing, but the Tribunal will usually limit the number allowed. Currently, the limit is three witnesses for SEN appeals and five for disability discrimination appeals. If you wanted to bring more witnesses, you would need to make a special application.