SEN – England

Children and young people have a right to receive a suitable education. A good education will prepare children for life and allow them to achieve their full potential. Children and young people with special educational needs (SEN) and/or disabilities may require (i) provisions to support their needs and (ii) attend a particular school that can meet those needs.

The best way to ensure that your child or young person’s needs are identified and met are through an Education, Health and Care Plan (EHCP). There are various steps involved in obtaining and maintaining an EHCP which include:

• Education, health and care needs assessment (EHCNA)
• Issuing an EHCP
• Annual reviews of EHCP
• Transition reviews (phase transfers)

If a Local Authority refuses to undertake an assessment, refuses to issue an EHCP or fails to amend an EHCP when required, it is possible to challenge these decisions with the First-Tier Tribunal (Special Educational Needs and Disability) (‘SEND Tribunal’).

What is the SEND Tribunal?

The SEND Tribunal handles appeals made by parents, young people and carers against decisions made by local authorities including refusals to:

• assess a child or young person’s educational, health and care (EHC) needs
• issue an EHCP
• reassess EHC needs
• amend the contents of the EHCP
• maintain an EHCP

The SEND Tribunal are also able to consider appeals of disability discrimination against schools.

Education, Health and Care Needs Assessment (EHCNA)

An EHCNA is the first step in obtaining an EHCP. These assessments are undertaken by the local authority to establish the child or young person’s (a) educational, health and social care needs and (b) provisions needed to meet those needs.

The following individuals can make a request for an EHCNA:

• Young person
• Parent
• Person acting on behalf of a school/post-16 institution

The local authority only needs to be satisfied that it “may be necessary” that a child or young person requires special education provision to undertaken an assessment. If the local authority decides that an assessment will not be undertaken, they must provide reasons for their decision to the parents or young person. This decision can then be appealed with the SEN Tribunal.

If the local authority agrees to undertake an assessment, they must obtain a wide range of evidence and determine whether to an issue an EHCP.

EHCP – refusal to issue

A local authority may refuse to issue an EHCP if they do not believe that a plan is “necessary”. There is a myriad of case law dealing with the meaning of ‘necessary’ and a term, according to the Court of Appeal, should not be ‘over-defined’. However, the following may be relevant factors:

• Specific facts and evidence of each case
• Whether the child or young person is making sufficient progress
• Whether the provisions are available at a mainstream school

If a local authority refuses to issue an EHCP, you can appeal this decision with the SEN Tribunal.

Contents of an EHCP

If a child or young person has an EHCP, it is essential to ensure that the contents of the plan are reviewed, reassessed and amended when required. The contents of an EHCP include:

• Section A: views, interests and interests of the child/young person and parents

• Section B: the child/young person’s SEN

• Section C: the child/young person’s health needs related to their SEN

• Section D: the child/young person’s social care needs related to their SEN

• Section E: outcomes set for the child/young person

• Section F: special educational provision required to meet each of the needs set out in Section B

• Section G: health care provision required

• Section H: social care provision required

• Section I: the name an type of school/post-16 institution that the child/young person will attend

• Section J: details of any direct payments/personal budget

• Section K: details of all advice and information gathered as part of the EHCNA

Can I appeal the contents of the EHCP?

If the local authority has issued an EHCP, made amendments following an annual review or refused to make requested changes following a review, it is possible to appeal the contents of the EHCP with the SEN Tribunal including:

• Sections B, F & I

• Sections C, D, G & H – ‘extended appeals’

The SEND Tribunal is also conferred a general power to ‘correct any deficiencies’ in a EHCP plan.

An EHCP is a legally binding plan, so it is essential to make sure that the specific details of your child’s needs and provisions required to meet those needs are included within the EHCP. If the details are not included within the plan, there is the risk that your child will not receive the much needed support they require.

It is also incredibly important to ensure that your child attends a school that can meet their needs. If the local authority do not agree with your proposed school/post-16 institution, you can ask the Tribunal to name this placement within Section I of the EHCP.

Cease to maintain an EHCP

If a local authority decides to end or take away an EHCP, this is commonly referred to as ‘ceasing to maintain’ a plan. A local authority may decide to cease to maintain a plan if:

• the authority is no longer responsible for the child/young person

• they do not believe that it is ‘necessary’ for the plan to be maintained

This decision can be made at any time, but the local authority must inform and consult the child/young person, parents and headteacher of the school/post-16 institution first.

If you are bringing a ‘cease to maintain’ appeal, it is also possible to appeal the contents of the EHCP alongside this. This can be particularly useful where your child/young person is due to transition to another educational institution.

How do I appeal to the SEND Tribunal?

Parents and young people can raise appeals with the SEND Tribunals which either must be made by:

• 2 months of the local authority’s decision; OR

• 1 month from the date of the mediation certificate

You may be required to consider mediation before an appeal is submitted. When bringing an appeal with the SEND Tribunal, it is important to ask yourself:

• Have I made my appeal clear and cited the relevant legislation and codes?

• Have I obtained evidence to support my case?

• Will I be asking witnesses to attend the hearing with me?

Our special educational needs lawyers are here to help you through each stage of the Tribunal process. Our team of dedicated solicitors is equipped with the knowledge and experience necessary to provide practical advice, representation and support. We strive to ensure that students’ rights are protected, that fair processes are followed and that children with special educational needs receive the support they require.

Contact us today for a free initial consultation, where we can discuss your specific situation and provide guidance on how our education law services can assist you.