by edas support@edas-advocacy - mugsy.orgmugsy.org/temp/edas2012.pdf · advocacy support...

By EDAS [email protected]

1 Educational And Disability Advocacy Support [email protected]

This information has been provided by EDAS (Educational and Disability Advocacy Support) as background information only. The information provided therein must not be relied upon and readers are strongly encouraged to seek independent legal advice when contemplating any form of legal action.

Educational And Disability Advocacy Support [email protected]

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Legally a child has special educational needs if they have a "learning difficulty" which calls for "special educational provision" to be made for them. •  A “learning difficulty” is where a child: •  Has a significantly greater difficulty in learning than the

majority of children of their age; •  Has a disability which prevents or hinders them from making

use of educational facilities of a kind generally provided for children of the same age in schools within the area of the LEA; or

•  Is under compulsory school age and falls within the definition above or would do so if special educational provision was not made for them.


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•  Support for the Special Educational Needs (SEN) of children in school who do not have a statement is provided at two levels:

1. School Action (SA) Triggers for receiving help at SA include the concern of teachers or others (including parents) backed by evidence that:

•  Child is making little or no progress despite targeted teaching strategies

•  Child has difficulty developing literacy and/or numeracy skills resulting in poor attainment

•  Child has persistent emotional and/or behaviour difficulties, not improved by normal behaviour management

•  Child has sensory or physical problems and is making little or no progress despite specialist equipment

•  Child with communication/interaction difficulties, making little or no progress despite differentiated curriculum.


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2, School Action Plus (SA+) Despite extra help at SA, one or more of the following are likely to trigger SA+: •  Child is still failing to make much progress in specific areas over

a long period •  Child is still working at National Curriculum levels well below his

or her age group •  Child continues to have difficulty developing literacy and

numeracy skills •  Child’s behaviour substantially and regularly interferes with his

or her learning and that of the class despite an individualised behaviour management programme

•  Child has on-going communication/interaction difficulties which are impeding social relationships and learning

•  Child with sensory or physical difficulties needs more help


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Provision at SA+ is characterised by: the involvement of external support, e.g. specialist teaching or LA educational psychologist who may provide general advice, specialist assessments or advice on different strategies or materials.

There is no requirement that a child must progress through SA and SA+ to statutory

assessment (Parents have a right to a free copy of the

school’s SEN policy)


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SEN Code of Practice 7:34 In deciding whether to make a statutory assessment, the critical question is whether there is convincing evidence that, despite the school, with the help of external specialists, taking relevant and purposeful action to meet the child’s learning difficulties, those difficulties remain or have not been remedied sufficiently and may require the LEA to determine the child’s special educational provision. LEAs will need to examine a wide range of evidence. They should consider the school’s assessment of the child’s needs, including the input of other professionals such as educational psychologists and specialist support teachers, and the action the school has taken to meet those needs. LEAs will always wish to see evidence of, and consider the factors associated with, the child’s levels of academic attainment and rate of progress. The additional evidence that authorities should seek and the questions that need to be asked may vary according to the child’s age and the nature of the learning difficulty.


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Send a letter to the LEA i.e. Dear Sir or Madam,

(child’s name) (date of birth)

Request for formal assessment

I am writing as the parent of the above child to request an assessment of his special educational needs under the 1996 Education Act.

(child’s name) attends ..................... school.

I believe that (child’s name)'s special educational needs are as follows:

My reasons for believing that the school cannot on their own make the provision required to meet my child’s needs are:

I understand that you are required by law to reply to this request within six weeks and that if you refuse I will be able to appeal to the Special Educational Needs Tribunal.

Yours sincerely,


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•  See Code of Practice 8.12 -14: “The decision as to whether to make a statement should be determined by the child’s identifiable special educational needs in the context of arrangements for funding schools in the area. LEAs should, of course, arrange for the provision specified in a child’s statement to be made in a cost-effective manner, but that provision must be consistent with the child’s assessed needs. The efficient use of resources must be taken into account when an LEA is considering the placement of a child with a statement, once the parents have had an opportunity to express a preference – see from 8:58–69”.


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•  PART 1 - Personal details •  PART 2 - Special educational needs. •  PART 3 - Special educational provision •  PART 4 - School •  PART 5 - Non-educational needs •  PART 6 - Non-educational provision

THE LEA are responsible for what is provided in part 3.


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The nature of a Statement was considered in R v The Secretary of State for Education ex parte 1 FLR 377, Balcombe J who delivered the leading judgment of the Court of Appeal and endorsed the view that:

“The Statement is no ordinary form, Part 2 may be compared to a medical diagnosis and Part 3 to a prescription for needs diagnosed.”

Code of Practice para. 8.32 Part 2 of the statement should describe all the child’s learning difficulties identified during the statutory assessment. It should also include a description of the child’s current functioning – what the child can and cannot do. The description in Part 2 should draw on and may refer to the professional advice attached in the appendices. Where the LEA adopt that advice in their description of the child’s learning difficulties, they should say that they have done so. But merely stating that they are adopting the advice in the appendices is not sufficient. The advice received may contain conflicting opinions or opinions open to interpretation, which the LEA must resolve, giving reasons for the conclusions they have reached. All advice must be considered and appended to the statement. Part 2 should be set out in a fashion which can relate directly to the description of provision set out in Part 3 (b).


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If Part 2 of a statement is not correct, the provision in Part 3 of the statement cannot be correct; further if Part 3 of the statement is incorrect, it follows that the incorrect school will be identified in Part 4


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Mindful of the fact that some Local Authorities were writing statements which were vague and unenforceable, in March, 2010 the Department for Children Schools and Families (as it then was) published the document: Improving the quality of statements of special educational needs: Good practice in writing statements.

Para 13 of this document which includes the following: “In doing this, terms such as ‘regular’ and ‘frequently’ should

not be used because they are insufficiently precise. Similarly, phrases such as ‘opportunities to’ or ‘might benefit from’ are not sufficiently specific and should also be avoided”


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•  As a minimum, the following should be specified:

•  The amount of 1:1 support a child needs •  The therapy a child needs and the length and

frequency of sessions •  If a child needs to work in a small groups, the size of

the group •  Class sizes •  Staff qualifications and experience


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•  Placement in a different year group: AB –v- North Somerset [2010] UKUT 8

•  Different class sizes: H –v- Leicestershire[2000] ELR 471 •  Staff qualifications/experience: e.g. "teacher who is experienced in

working with pupils who have significant learning difficulties and autism/communication disorders": R –v- Wandsworth ex parte M [1998] ELR 424

•  Where small group work is involved, the size of the group, the length and frequency of the sessions: L –v- Clarke and Somerset[1998] ELR 129

•  The need for and amount of 1:1 work: L –v- Clarke and Somerset [1998] ELR 129

•  Amount of input from other professionals, such as sessions of speech therapy: R –v- Harrow ex parte M [1997] FCR 761


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a) Seamus needs access to provision X.... What does this mean? Does Seamus needs provision X or doesn’t he?

b) Ali needs a high level of support....... What is a high level of support when it is at home? Does it mean Ali should have one to one support or should he be one of a group of 30, 50 or 90 children taught by one teacher? After all, one person’s definition of a high level of support might be another person definition of a low level of support.

c) Mandy needs to be taught in a class with a favourable teacher to pupil ratio... What does “favourable” mean?

d) Jack needs to be supported by an adult. Whilst it may be reasonable to assume that the adult concerned will be human, what are the qualifications and experience of the adult who will be supporting Jack? For example, could it be the school gardener filling in between jobs?


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e) Yasmin needs a programme of speech and language therapy and occupational therapy.

Who will be devising monitoring and delivering these “programmes”? What types of therapy will they involve i.e. direct or group therapy? Furthermore, how many sessions of therapy will Yasmin receive per term and how long will they be?

F ) Polly would benefit from.... What does this mean? Many people would “benefit from” a tax free gift of a million pounds, but in the context of educational provision, does Polly need what is being referred to? If she does, surely it is better to say “Polly needs..”.

g) Hitesh will be given encouragement to learn. Given Hitesh will be attending a school, one is entitled to take for granted that all the children in the school will be encouraged to learn. Perhaps the “encouragement” referred to should indicate what specific learning strategies should be used with Hitesh.


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h) Franco should be given opportunities to..... “Opportunities to” is a hardy perennial which is often used instead of or with “access to” and “benefit from” (see above).

i) Gary needs speech and language at a level to be decided by the therapist and to be reviewed annually. How does one know what level and type of speech and language therapy Gary will receive? For example, what is to say that the “therapist” will not decide that Gary needs no speech and language therapy?

j) William needs to be taught in a supportive environment. What does this mean? Given that the norm in schools is not to teach in an unsupportive environment, would it not be better to detail the kind of support William needs?


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•  “as required” •  “periodic” •  “regular” •  “frequently”

Remember The requirement to specify is "not a bureaucratic purpose…. by that

provision, local authorities … and tribunals… are required to give full and adequate specific consideration to the needs of the child… the requirement for specificity outlaws … a general statement …. in such

broad terms that it could lead to specific needs being ignored or inadequately focussed upon…. the second purpose is that, once

made in terms which are specific the purpose of the provision can be furthered and effected by enforceability….": E –v- Flintshire [2002]

EWHC 388 (Admin) [2002] ELR 378.


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•  Simple rule of thumb – any provision which is needed to enable the child to learn is educational. This could be:

•  Speech and Language Therapy •  Occupational Therapy •  Physiotherapy •  Auxiliary aids and Services


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•  Academies are INDEPENDENT not MAINTAINED SCHOOLS •  Their funding relationship is with the Secretary of State for Education (“SoS”) –

not an LEA •  They are MAINSTREAM schools (but “special” Academies likely to follow) •  Academies must be asked if the LEA to place them in part 4 of statement – if

they don’t agree with the LEA’s decision to name, apply to SoS to make an order to reconsider – this is all subject to any decision made by First-tier Tribunal (Special Educational Needs and Disability)

•  Good first step - Always obtain the funding agreement (FA) for the academy you are dealing with. The FAs are or should be available on the DfE web site at: http://www.dcsf.gov.uk/foischeme/subPage.cfm?action=collections.displayCollection&i_collectionID=190. If your academy’s agreement is not there, email [email protected] to request it. It should then be sent to you within 20 days (FoI Act). When you have the FA, look at the SEN Annex (usually Annex 3, or C).


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•  Recent cases supported by IPSEA have Established the following:

•  The First Tier Tribunal can hear an appeal by a parent who wants an academy placement against that academy’s wishes, even where that academy’s funding agreement does not state that it will follow a decision by the Tribunal. The tribunal has the power to name an academy in part 4 of a child's statement even though the academy has not offered a place.

•  The Secretary of State for Education stated to the Upper Tribunal that he would give weight to the decision of the First Tier Tribunal as a specialist tribunal if an academy chose to go on to appeal to him against the Tribunal’s decision

•  Both the Upper Tribunal and the First Tier Tribunal applied only the law relevant when a parent of a statemented child wants an independent school, that is, section 9 of the 1996 Education Act. The funding agreement is not at all determinative, as it is a private contract between the school and the Secretary of State, unavailable to either parents or local authority in a Tribunal appeal.


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•  On the 3rd September 2012 The Department of Education published the draft changes to legislation that the Government are proposing to introduce to develop SEN system.

•  A bit of Background: What is this all about?

•  Objectives: •  ONE A new assessment process to replace the statutory SEN

assessment The DfE describe this as: •  “Bringing together the support on which children and their families rely across

education, health and social care … We will test how to improve a multi-agency approach to assessment and planning. Currently, local authorities often take decisions based on correspondence with other agencies, and we would like to see a less bureaucratic and less adversarial approach where agencies come together to agree their support with parents, and the responsibilities of different agencies are clear.


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•  Two: A single ‘Education, Health and Care Plan’ (“HEC Plan”) to replace Statements of SEN The DfE have stated that: “The new ‘Education, Health and Care Plan’ will provide the same statutory protection to parents as the statement of SEN and will include a commitment from all parties to provide their services, with local assessment and plan.”

•  Three: Direct payments to parents for Part 3 provision The DfE explanation here is: “Personal budgets for parents of children with Statements of SEN so they can choose which services best suit the needs of their children.”: Will require parental agreement and can buy or subsidise provision

Pathfinder Authorities have tested the above


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•  Legal definition of what are special educational needs stays the same - s.1(1) •  Introduction of duties to compel LAs and Health to “make arrangements about” the

provision to be secured for children and young people - s. 6(1) •  Right to a mainstream education stays the same for those that want it - s.13(2) •  Education, health & care (EHC) plan must include the outcomes sought for the child or

young person - s.17(2) •  Admission to mainstream Academies is now to be on the same basis as to mainstream

maintained schools - s.19(3) & (4) •  Academy must admit a child to the school where it is named in the EHC plan -s.22(1) •  LAs must prepare a personal budget for a child or young person with a EHC plan if

requested by parents or young person - s.26(1) •  Parents or young people must take part in mediation before making an appeal to the

SEND Tribunal re: the needs and special educational provision outlined in the EHC plan - s.29(5)

•  SEND Tribunal will only be able to consider issues relating to the educational provision contained within the plan - s. 28(2)(c)(ii)

•  Pilot scheme will be established to enable children to appeal to the SEND Tribunal - s.31 •  BUT – Remember this is only a draft!


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•  Schools required to provide aids and services to disabled pupils from 1 September 2012 – these are reasonable adjustments:

•  What could they be? •  height adjustable desks •  special computer equipment (for children with

visual impairments) •  speech and language (or other) therapy services. •  These are expensive adjustments designed to

overcome the disadvantage a child in a school is subject to because of their disability


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by edas support@edas-advocacy - mugsy.orgmugsy.org/temp/edas2012.pdf · advocacy support...

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