Where to place a child with SEN is a highly personal choice and one that may need to take into account a number of factors including location and available provision, and parents will often need to be proactive and resilient to ensure their children’s rights to specialist education are upheld.
For parents just beginning the SEN journey – it can seem like a challenging and complex landscape to navigate, however, it’s vital to keep front of mind that children with SEN have a right to receive special educational provision.
Here’s what you need to know…
The first step to securing the best possible education for a child who may have SEN is to undergo an EHC needs assessment. This is an assessment of a child or young person’s education, health and care needs.
An EHC needs assessment is needed to get an Education, Health and Care plan (EHC plan). The education system is based on the assumption that all children and young people will attend mainstream education unless in certain circumstances. Specialist settings are only available to children and young people who have an EHC Plan, unless in exceptional circumstances. An EHC plan can result in additional support, funding or specialist placement for a child or young person with special educational needs.
If a local authority is requested to carry out an EHC needs assessment by a parent, young person, school or college, the only questions they should be considering are: whether the child or young person has or may have SEN and whether they may need special educational provision to be made through an EHC plan. If the answer to both of these questions is yes, they must carry out an EHC needs assessment, according to the law.
A request for an EHC needs assessment can be made at any time, this includes children from age 0 to five years old. A child’s school or nursery usually makes the initial request for an EHC needs assessment with consent from the family However, parents do have the right to make the request themselves and should do this if the school or nursery has not.
The local authority must reply to a request for an EHC needs assessment within six weeks (this is required by regulation 4(1) of the Special Educational Needs and Disability Regulations 2014). They should always reply to the parent or young person directly – even where the request was made by the school or college.
If the local authority does not agree to carry out an EHC needs assessment – parents can contest this decision at a tribunal and 92% of tribunal appeals win.
An Educational Health and Care (EHC) Plan is the foundation on which decisions about the future direction of a child’s education are based.
Once an EHC needs assessment has been made, a draft EHC Plan is drawn up – legally, this needs to be sent to parents within 14 weeks of being requested.
This draft plan will include information on the child or young person’s SEN, health and care needs, the provision required to meet each of those needs, and the outcomes that should be achieved. It will also record the child or young person’s aspirations, views and feelings. At this stage, the plan does not include suggested schools or types of placement.
Parents are given 15 days to respond to the draft plan – with the opportunity to make comments, suggest a particular school or placement, or request a meeting to discuss the plan.
Once this feedback has been taken into account, the Local Authority will draft a final EHC Plan which outlines the SEN provision the young person is legally entitled to. The plan will name the type of provision the young person if entitled to, and it will normally also have the name of a particular school or college.
If an institution is named in an EHC plan, it must admit the child or young person and put the educational provision in the EHC plan into place. If the parent or young person requested a particular school, college or other institution, the LA should have consulted with that institution.
When a final EHC plan is issued the parent or young person has a right of appeal to the First-tier Tribunal (the Special Educational Needs and Disability Tribunal) if they are unhappy about the description of a child or young person’s SEN; the SEN provision specified in the EHC plan; the specified school or college in the EHC plan; or the fact that no school or college is included in the plan.
EHC plans should be updated annually and if your Local Authority is not acting in accordance with your child’s EHC plan you can request a Judicial Review – where the High Court reviews the decisions of public bodies.
Parents can contest a local authority’s decision not to conduct an EHC needs assessment, and they are also able to contest both the school or institution chosen in the resulting EHC plan or the level of special educational support outlined in the plan.
If parents decide to appeal a local authority decision via tribunal, there are number of factors which can help to accurately show the child’s need and present a strong case for specialist support.
Tribunals are evidence driven, and evidence is essential, so it is a good idea to invest in an independent educational physiologist report to assess need, placement, and expert comment on placement options.
It may also be worth securing additional expert viewpoints and evidence, such as a report from a speech and language therapist.
If you have an EHC plan but have decided to contest the local authority’s decision on which school or institution your child should attend or their assessment of need, make sure you have your bases covered and are prepared to address all the elements contained within the EHC plan.
– Start with the needs of the child in Section B – get an independent educational psychologist’s report to build a picture of the need. Other specialist reports – like a speech and language specialist assessment, might also be helpful to clearly show the learning and development requirements that need to be catered to.
– Section F needs to outline the provision the child needs in clear and highly specific detail. Make sure this clearly quantifies the type and amount of therapies and care needed. For example, the plan should not just state that the child needs access to a therapist, instead, it should say something like: ‘The child requires one hour direct contact from a qualified speech and language therapist experienced in working with children with SEN’.
– Finally, Section I outlines the school or institution chosen.
When going through tribunals, it can be helpful to appoint a barrister or lawyer who is experienced and has a deep understanding of the SEND sector.
Parents who qualify for Legal Aid can get Legal Aid covered support and there are a number of solicitors and barristers who specialise in education cases.
There are also a number of charities and organisations which offer outstanding guidance and support for families. These include:
IPSEA (Independent Provider of Special Education Advice): a registered charity that offers free and independent legally based information, advice and support to help get the right education for children and young people with all kinds of special educational needs and disabilities (SEND). IPSEA also provide training on the SEND legal framework to parents and carers, professionals and other organisations. www.ipsea.org.uk
SOS!SEN: a registered charity that offers free, friendly, independent and confidential telephone helpline for parents and others looking for information and advice on Special Educational Needs and Disability (SEND). www.sossen.org.uk
The National Autistic Society: the UK’s leading charity for people on the autism spectrum and their families. Since 1962, it has provided support, guidance and advice, as well as campaigning for improved rights, services and opportunities to help create a society that works for autistic people. www.autism.org.uk
Rights in Reality blog: Parents can find a host of useful information, legal background and guidance as well as a directory of SEN legal specialists on the Rights in Reality blog written by Steve Broach, a barrister who specialises in campaigning work with and for disabled children and adults and their families. Many of his cases involve the intersection between law, policy and politics. https://rightsinreality.wordpress.com/about/