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What do we mean by SEND Law?

View profile for Thomas Browne
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I have been a litigation lawyer for many years and for the past 6, or 7 I have had to grapple with the complexities of Special Educational Needs & Disabilities (‘SEND’) Law after my autistic children were diagnosed as such. From the very moment of that diagnosis I had no idea what lay ahead and the many twists and turns our journey would take.

It is fair to say there have been many battles and unless experienced at first hand no one can imagine just how difficult it is to secure basic health & social care provision and an education for a child with special educational needs.  Local Authorities, health professionals and many schools are in so many instances not on the same page to put mildly.  The people who are supposed to help are not necessarily on your side and confrontation will ensue in so many instances adding to the frustrations.

The Education and Health Care Plan (‘EHCP’) is presently the cornerstone of the SEND system and replaces the old style ‘statement’. The relevant law is contained within the Children and Families Act 2014 and the Special Needs and Disability Regulations 2014, plus statutory guidance can be found at the SEN and Disability Code of Practice. 

The EHCP is a legal document which describes the needs of the child, details the provision and the name of the education placement assuming of course your child is lucky enough to have a placement. Local Authorities have a legal obligation to provide the support detailed in the EHCP which at first sounds positive. The EHCP is divided up into a number of sections (A to K) and to be blunt is far from straightforward. Dare I suggest the complexities of the EHCP are the root cause of so many appeals, failed provision, incorrect advice and disputes? For example, arguments can arise as to whether speech & language therapy is a health, or an education provision. Add into the mix that some Local Authorities freely admit that only ‘most’ staff working in SEND are trained and you can begin to imagine what a total mess the system is in.

To obtain an EHCP a school can apply to the Local Authority requesting that it undertakes a needs assessment which is the first stage on the long road ahead. Often though a school will believe it is making adequate provision for the child, nothing would be gained by having an EHCP in place and will refuse to pursue further. Thankfully, there is absolutely nothing to stop a parent by passing an intransigent school and applying directly to the Local Authority at any time by just sending a one page letter to request that a needs assessment is undertaken. Evidence which may help in the process and any new information can be sent to the Local Authority during the 6 week period it has to consider the initial request.

The whole process in obtaining a final EHCP is drawn out and involves a number of stages (i) applying for a needs assessment as mentioned above; (ii) Local Authority agreeing to undertake a needs assessment; (iii) issuing draft EHCP; and (iv) issuing the final EHCP. The process takes many months with the timeframes set out in the regulations. A Local Authority can decide at any of the stages not to proceed any further.  It is also the case that a significant number of final EHCP’s make inadequate provision. Further, under the statutory regime the EHCP must be reviewed every 12 months (or possibly earlier depending upon the child’s circumstances) but as is so often the case the 12 month window just passes by without any sign of a review being undertaken.

A parent can pursue an appeal to the First Tier (Special Educational Needs & Disabilities) Tribunal within 3 months if it is unhappy with a decision made in relation to a Needs Assessment or an EHCP. The SEND Tribunal is completely independent but beware the Local Authority will frequently be represented by a professionally qualified lawyer and produce an array of experts. A parent that is able to funds its own experts and engage legal representation is likely to do much better for the child which of course is manifestly unfair.

In respect of appeals regarding the content of the EHCP the SEND Tribunal has limited powers as it can only make orders concerning sections B (the child’s special educational needs), F (the special educational provision to meet the child’s special educational needs) and I (the name of the school or other institution to be attended by the child). Under the extended National Trial the SEND Tribunal can also make recommendations in respect of health and social care issues. The hearings themselves are formal with set procedures and take place before a panel of three consisting of a Judge and two lay representatives. During the pandemic hearings have been held virtually. A ‘Working Document’ which is an editable version of the EHCP is circulated well in advance of the hearing by the Local Authority and provides an opportunity for the parties to agree matters beforehand. A hearing bundle is prepared by the Local Authority.

Prior to lodging an appeal with the SEND Tribunal parents are encouraged to pursue mediation and must contact a mediation provider even if they have no intention of mediating. Curiously, as far as I am aware, parents up and down the Country are steered towards just one mediation provider which to my mind throws into question the neutrality of the process. Further, many people, including myself, believe mediation in the context of SEND should be avoided as it just delays even longer obtaining the much needed provision for the child. Plus, realistically what are the chances of an intransigent Local Authority changing its mind at mediation when no doubt it has put up stubborn resistance at ever stage? I am though for the record a massive fan of mediation in the context of resolving civil disputes when both parties have a genuine desire to resolve issues of conflict.

If at the conclusion of the appeal process a Local Authority fails to comply with a decision, or recommendation of the SEND Tribunal a parent is left with the daunting task of pursuing a Judicial Review asking a Court to look at the decision of a public body and to decide whether it was made in a lawful, fair and a reasonable manner. Judicial Review is of course not just confined to a Local Authority failing to implement the decisions of the SEND Tribunal but can be pursued in respect of any decision of a Local Authority where it is for example refusing to act, or make a decision in a certain way. Public funding may be available to the child subject to merits and financial tests and before going anywhere near a Court a strongly worded letter before action could potentially produce the desired results.

As an alternative to Judicial Review, a parent can pursue a complaint to the Local Government & Social Care Ombudsman (‘LGSO’) but it only has very limited powers involving the making of recommendations and granting small financial awards. The time frames are far from quick and it may take many months before a final decision is reached assuming to begin with the LGSO is willing to investigate.

Whilst nearly all parents are going to need something of a ‘miracle’ in order to obtain the education, health and social care provision their child is entitled to as of right, it would no doubt be helpful to seek a professional advice at the outset on the options available whilst treading very carefully through the minefield of SEND law.

Thomas Browne

Thomas Browne is a very experienced solicitor within the Litigation and Dispute Resolution Department. Should you wish to discuss any SEND matters arising please do not hesitate to contact Thomas at: tnb@kingsfords.net or Tel: 01233 624545.

This information sheet is intended to be for general guidance only and is not a substitute for specific legal advice.

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