EDUCATION LAW


Adam CresswellHi, I’m Adam Cresswell. Welcome to our pages on Education Law. The law ensures that any child with Special Educational Needs must have those needs met. As many of you will be aware, getting those needs met is not always straightforward.

Being objective and strategic about issues involving our children is never easy. As with any legal issue it is important to arm yourself with information and be as clear as you can be about what it is you want for your child. Getting the right help can be a battle, but it is path that many parents find themselves on. Have a look at the information here and if you have any queries, please feel free to give us a call.

 

HOW CAN WE HELP? YOUR QUESTIONS ANSWERED


WHAT IS A SPECIAL EDUCATION NEED?

If your child is struggling at school it may be that they have a Special Education Need (SEN). There are many difficulties that can qualify as a Special Education Need. The terms Special Education Need is a legal term which is used to describe the needs of a child who is experiencing difficulty or disability within their education which makes the process of learning harder compared with other children of comparable chronological age. Studies vary, but it is estimated that approximately one fifth of children have a Special Education Need at some point in their school careers.

Some learning difficulties may be temporary within education, some may be limited to a specific area of learning such as difficulty with numbers and/or letters. Some difficulties may not be directly associated with the process of education such as an inability to communicate with others or problems forging relationships with those around them.

IDENTIFYING SPECIAL EDUCATION NEEDS

The backbone of Special Education Need provision in England and Wales is the Education Act 1996 (as amended by the Special Educational Needs and Disability Act 2001 (SENDA)). Under the Act a child is deemed to have a Special Education Need if ‘he has a learning difficulty which calls for special education provision to be made for him’. ‘Provision’ is clarified as circumstances where the child:

  • has significantly greater difficulty in learning than the majority of children of his/her age; or
  • has a disability which either prevents or hinders him or her from making use of education facilities of a kind generally provided in schools, within the area of the local authority concerned, for children of his/her age; or
  • is under the age of five years and is, or would be if special education provision were not made for him/her, likely to fall within either of the above paragraphs when over that age.

It is to be noted that English not being the child’s first language, giftedness and high ability are not included within the definition of Special Education Need.

DEFINITION OF DISABILITY

The Disability Discrimination Act 1995, which sets down the basic definition of disability used by the SENDA, describes a disabled person as:

‘Someone who has a physical or mental impairment that has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities’.

The Education Act 1996 requires LAs to undertake a multi-professional formal assessment of a child in its area if they believe that the child has special education needs that are such the LA will probably need to arrange provision over and above what education is normally available in a mainstream school and, if necessary, formally set this out in writing. This document is what is known as an Special Education Need statement.

FIRST STEPS

No one knows your child better than you. If your child is experiencing difficulties with their education, the chances are that you will be the first to notice. The appropriate people to discuss education matters with are their ‘form’ or class teacher and the SENCO (Special Education Needs Co-ordinator) who has responsibility for dealing with issues raised by any identified Special Education Needs. You should explore:

  • Whether they have any concerns about your child’s education development
  • Whether your child is learning at the same rate as other children their age
  • Whether you child has needed any extra input in any education areas
  • Whether they have any suggestions as to how you can help your child at home with their education
  • Whether your child is on ‘School Action’ or ‘School Action Plus’

THE LEGAL DUTY ON THE SCHOOL/LOCAL AUTHORITY


The Local Authorities’ duties are outlined in the Education Act 1996 which requires that the Local Authority:

  • Identify children with special education needs;
  • Where necessary, make an assessment of those education needs, taking account of education, medical, psychological and other factors;
  • Where necessary, make a formal statement of those education needs and specify the provision which should be made to meet them.
  • Publish a policy detailing how students with Special Education Need will be assisted in accessing the National Curriculum.

They have a qualified duty to place pupils with special education needs in mainstream schools, alongside pupils of the same age without such needs where parents want this. The qualifications for mainstream placement are:

  • that the child receives the special education provision required by his/her learning difficulty;
  • that it is compatible with the provision of efficient education for the children with whom s/he will be educated; and
  • that there is an efficient use of resources within the education.

Under the Education Act 1996, state schools must also do their best to make the provision a child’s learning difficulties call for. They must also publish information about their special education needs provision.

THE SPECIAL EDUCATION NEEDS CODE OF PRACTICE


The SPECIAL EDUCATIONAL NEEDS CODE OF PRACTICE gives detailed guidance on the identification and assessment of pupils with special education needs. It has separate sections on provision in the different stages of education, working in partnership with parents and other agencies, and on pupil participation. It recommends that schools and the Local Authority adopt a graduated response, documented at each stage and using a range of strategies and means of support for pupils with learning difficulties, starting with those available within the school (or early years provision) and moving on to specialist external support.

The Code of Practice lays out detailed guidance as to the procedures following a decision to undertake a formal multi-agency assessment for a child. This includes time scales for taking action and regulations regarding informing parents.
The Local Authority will make a statement of Special Education Need if the assessment indicates that the special help a child needs cannot reasonably be provided within the resources normally available to the school.

If the LA decides not to make a statement of special education needs, it must notify the parents of this decision. Parents have a legal right to appeal to the Special Educational Needs and Disability Tribunal (SENDIST) if they do not agree with the final statement or if the LEA decides not to make a statement. LEAs in England and Wales must ensure that the child receives the education provision specified in the statement of special education needs.

All Statements of Special Educational Needs must be reviewed annually.

LAW FOR LIFE


We are currently developing a complete guide to navigating what can sometimes be the complicated legal process of ensuring children with Special Educational Needs receive the help and support they desperately need. Unfortunately this sometimes sees parents feeling isolated and embattled. If you would like us to notify you when the guide is available, please send us an email and we will keep you updated.

 

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