Getting started in the SEN process

What are 'special educational needs'?

The term ‘special educational needs’ (SEN) is a very broad umbrella.

SEN encompasses a wide range of needs and it often means that children in school require the support of a variety of clinical and educational agencies. The established categories of SEN are: specific learning difficulty, moderate learning difficulty, severe learning difficulty, profound and multiple learning difficulty, behavioural, emotional and social difficulties, speech, language and communications needs, a hearing impairment, visual impairment, multi-sensory impairment, physical disability and autistic spectrum disorder.

In the UK, s 312 of the Education Act 1996 says that “a child has special educational needs if he or she has a learning difficulty which calls for special educational provision to be made for him or her".

It does not say: 'a child has to be 3 years behind his/her peers'; 'a child needs to be failing'; 'children who are working at expected levels can't get statements'; and it does not allow local authorities to decide not to 'do' statements any more.

In law, a ‘learning difficulty’ means that a child or young person has significantly greater difficulty in learning than the majority of children of the same age or they have 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 local education authority. This can be for a variety of reasons not just because of academic ability or poor performance. Many children with Asperger's Syndrome, for example, have complicated problems which prohibit them from actually being in school although they may be academically able.

The LA has a duty to provide education 

The local authority (or Tribunal on appeal) is under a duty to secure provision which meets the child’s SEN. This is not “an obligation to provide a child with the best possible education. There is no duty on the authority to provide such a Utopian system, or to educate him or her to his or her maximum potential. …” R v Surrey CC ex p H (1984) 83 LGR 219.

However, the duty is to provide what is 'appropriate' to meet the child's needs and not just what is 'adequate'. C v Buckinghamshire CC, [1999] ELR 179, at p.189E-H; NM v Lambeth [2011] UKUT 499 (AAC).

The term 'needs' means 'what is reasonably required' and calls for a decision on whether what was proposed for inclusion in a statement was reasonably required or whether it went beyond that.  It must be noted that the local authority (or Tribunal on appeal) should not simply look at the short term needs of a child in drawing up a Statement: Wilkin & Goldthorpe v Coventry [1998] ELR 345; Southampton –v- G [2002] EWHC 1516; [2002] ELR 698

The Special Educational Needs Code of Practice

The Education Act 1996 is supported by the Special Educational Needs Code of Practice (SEN COP). This is an important guide as it sets out the path that local authorities and schools should follow if a child has SEN. SEN COP is statutory guidance which means it can only be departed from for good reason Munjaz v Mersey NHS Trust [2006] 2 AC 148.

This is an essential guide - get one and follow through the sections relevant to your child.

The graduated SEN pathway

It is frequently said that there is a 'graduated response' for SEN support and a child moves from one level to another depending on whether s/he is making progress. However, the law does not say that a child must follow a path of failure from School Action to School Action Plus before a parent can request a statement.

Para 8:13 SEN COP provides some useful examples of situations where a statutory assessment for a statement may be needed: e.g. the child may need daily individual support from a learning support assistant or regular help from external agencies. Such things may be apparent as soon as a child's SEN are recognised necessitating an application for a statutory assessment.

In other situations, schools will start by putting a child on the SEN register at School Action . This means they should provide the child with some extra help. If school need to access external agencies for the child (e.g. speech and language therapy, educational psychology, occupational therapy etc) a school should put a child on School Action Plus. This requires more detailed planning of interventions and may, in some local authorities mean that children are entitled to a number of hours support out of their school's budget (although this doesn't have to be delivered 1:1).

Schools must tell parents and carers if a child is put on the SEN register and a child should have an Individual Education Plan which contains SMART targets: SMART stands for Specific, Measurable, Achievable, Relevant, Time-limited. The targets set out the goals the child is working towards and the provision or strategies which are to be used to help. It is essential that progress is measured carefully and objectively so it can be clearly seen if the intervention or support a child is getting is not working and targets are not being met.

To be able to measure progress properly, a baseline assessment should have been taken, e.g. there should be a way of identifying your child's skill level before the intervention. Progress should then be measured objectively against the targets e.g. 'Billy could read 4 words, he can now read 10 words' is satisfactory, whereas 'I think Billy seems to be better at reading' is not. If a child is consistently failing to make progress this should be noted and the targets and options for further or alternative levels of should be considered.

School should involve parents in the setting of targets and the SEN COP of practice says IEPs should "be reviewed at least twice a year. Ideally they should be reviewed termly, possibly more frequently for some children" (paras 5:53, 6:61). It is a good idea to take a note at meetings and confirm what has been agreed afterwards in writing.

It also says that pupils with special educational needs should become progressively more involved in setting and evaluating targets within the IEP process. Article 12 of the UN Convention on the Rights of the Child confirms that a child's views should be taken in relation to decisions which affect him/her. Although the Convention is not binding law, it is good practice to respect its principles. What does the child or young person thing? What is and what isn't working for them? Seeking the views of  the person with SEN wherever possible is essential: be creative if it is hard to do. It is their right to be heard.

Schools and SEN

It is really important to be aware that help at these levels will come out of school budgets and a child's entitlement is not guaranteed in law. Moving a child from School Action to School Action may increase the child's entitlement depending on local authority funding arrangements so schools may be reluctant to put children at this level of support even when external agencies are involved. Ultimately, under the Education Act, a school simply has to use its 'best endeavours' to secure the special educational provision of a child without a statement. There is no enforceable legal right to the provision.

However, local authorities do not like issuing statements. They become responsible for delivering the SEN provision in them and they can be taken to court via judicial review if they do not. Schools may be told by their local authorities that they don't 'do' statements any more as all their SEN budget has been delegated to schools or that there are other children are far worse than this particular child and other schools are managing without a statement. They may be critical of schools who apply for too many statements and speak favourably of those who don't.

Teachers are not SEN experts and even school SENCOs (special educational needs coordinators) may have limited training in the law in this area. What is given is usually provided by their local authority who may present their policies as 'law'. Schools may do their best to help. Some may tell you your child does not need a statement which may be quite right. However, some schools may say this when they don't want to apply for a statement, don't understand your child's needs or don't want to go into battle with their local authority. Some are just clueless: my son's teacher in his 'Outstanding' school told me he was 'miles off School Action Plus' - he now has full-time 1:1 support.

Statements give children enforceable legal rights: they protect the provision to be given to them. If a child is not making progress or his/her needs cannot be met with school resources, you may have to make a decision to apply for a statutory assessment of your child's needs.

Take advice if you consider your child needs different or increased provision. Remember it is not just about the quantity of support (e.g. more LSA hours) but about the quality of it too (e.g. staff training, specialist interventions etc): doing things differently may not actually cost more. Think creatively about what your child actually needs, remember that there is a legal duty to make reasonable adjustments for children with disabilities (see my blog post about 'SEN, disability and human rights') and above all trust your instincts!

  • For further information see the IPSEA 
  • IPSEA have produced a really helpful list of leaflets dealing with common problems and how to take action on them
  • Contact a Family also have a useful guide
  • Douglas Silas solicitors have produced this summary
  • The charity Stammeringlaw has a useful summary on its website

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