The leading lawyers on this page have been generous enough to share their thoughts on what they think parents and carers need to know.
Below are some top tips from some top legal practitioners!
David Wolfe QC
David is a leading public lawyer at Matrix, a Commissioner (non-executive director) at the Legal Services Commission and a Board Member of the Legal Services Board. Until July 2008, he was a part-time Chair of the Special Educational Needs and Disability Tribunal. David is an education law and judicial review expert and he believes passionately that public bodies should act in a fair and open way, and that the law and lawyers have a key role in ensuring that happens. David’s blog www.acanofworms.org.uk is for people concerned about academies/free schools and the law.
1. The fact that a local authority has delegated all its SEN funding to schools does not excuse it from undertaking statutory assessments, or making Statements which properly specify and quantify special educational provision in their Part 3.2. Always be sceptical about, and check carefully, claims about what academies/free schools can and can’t, must or must not, do legally.3. It is not lawful for a mainstream school (including an academy) to refuse to take a child with a statement because they say the school is ‘not suitable’ – they should instead focus on putting in place support to deliver the education the child needs.
John Ford solicitors offerspecialist advice and representation concentrating on public law issues. They are a small and dedicated team of five qualified solicitors committed to the interests of people who are disadvantaged by disability, lack of education or their upbringing. Education is central to their work.
John Ford says
Sarah PalmerKeep talking to the school and don’t delay in getting further help if things are not improving, as the SEN assessment/statementing process can take a long time.
Sarah Palmer of the Children's Legal Practice has a particular expertise in the area of special educational needs and appeals to the Special Educational Needs & Disability Tribunal. Sarah frequently advises in complex cases involving appeals to the Tribunal concerning placement issues and also the contents of Part 2 and Part 3 of Statements. Sarah is recognised in the current edition of the Legal 500 legal directory.
- Take someone with you to meetings with school / LEA / Health professionals to take a detailed note of what is said and write this up afterwards to refer back to
- Compare your notes against any minutes produced by the professional and send in your own minutes to be held on record if there is important information that has been left out or misrepresented
- Read the Special Educational Needs Code of Practice so that you are aware of what the LEA should and should not do
- Keep a diary of events pertinent to your child’s needs such as falls, meltdowns, illness, poor behaviour / incidents at school which will provide you with evidence as to what happened when and where and the frequency of issues that are concerning you
- Request copies of all IEP’s and behaviour management strategies in advance of meetings so that you have time to consider these prior to discussing them with professionals
- To assist communication with the class teacher on a day to day basis suggest the use of a home/school book to record any difficulties/successes on a day to day basis from home and school so that everyone is kept informed
- Diarise key dates in statutory timescales for statutory assessment and Annual Review processes and regular review of your child’s IEP or Annual Review so that you can ensure that these are kept to and timescales don’t drift. Don’t be afraid to send polite but firm emails and letters to schools and LEAs to ensure that timescales for review are kept to.
- Consider instructing your own good quality independent experts with proven SEN tribunal experience to assess your child and give you an independent view of all of your child’s Special educational needs and the provision that is required to meet these.
Polly is an associate solicitor at Irwin Mitchell, one of the UK's most successful and respected law firms with a national network of offices, writes:
1. Making better use of the Equality Act 2010
The Equality Act is an important piece of legislation that protects the rights of people with ‘protected characteristics’, including people with disabilities. The Act can be used in conjunction with a Statement of SEN to enforce a young person’s rights, but can be particularly useful where disabled child does not meet the criteria for a Statement of SEN, where they have not yet been provided with a Statement as they are still undergoing statutory assessment, or where the child has left compulsory education and moved onto further education without a Statement being provided. The Act must be applies to LEAs and all schools and educational providers, including Academies and high education institutions.
If you think you or your child is being unfairly treated at school or college as a resulted of a disability, you should consider the whether any of the following provisions in the Equality Act are relevant:
- Direct discrimination. This is where a person is treated less favourably directly as a result of their disability. For example, this would apply if a school said that a child with a disability was not allowed to participate in certain activities or classes.
- Indirect discrimination. This is where a person is disadvantaged as a result of a policy or practice which affects people with a disability more widely than somebody who is not disabled. For example, this would apply if a school says that only people achieving a high level of academic achievement are allowed to participate in additional courses and activities. This may affects children and young people with a disability disproportionately and is therefore indirect discrimination. Indirect discrimination can only be justified in certain circumstances, if it is deemed to be a proportionate means of achieving a legitimate aim.
- Discrimination arising from disability. This would arise where a young person is treated less favourably than another young person because of something arising as a consequence of their disability. For example, if a school excludes a pupil for being noisy in class, but that pupil was being noisy as a result of his learning disability. This type of discrimination can only be justified in certain circumstances, if it is deemed to be a proportionate means of achieving a legitimate aim.
The Equality Act also places schools and education authorities under a duty to make reasonable adjustments for people with a disability. For example, this could include providing auxiliary aids and services within school, to assist people with learning disabilities.
In addition, the Equality Act imposes a ‘public sector equality duty’ on all public authorities. This requires public authorities to carry out their functions paying ‘due regard’ to a series of specified needs, including the need to advance equality of opportunity for disabled people.
2. Secure a s.139 Learning Difficulty Assessment before leaving compulsory education
Statements of SEN will cease as soon as the young person leaves School and enters further or higher education.
In order to ensure that a young person is provided with appropriate education and provision when they leave School, the local authority must undertake a Learning Difficulty Assessment under s.139A of the Learning and Skills Act 2000 (“LDA”).
For children who already have a Statement of SEN, the local authority is under a legal duty to carry out an LDA. However, for young people without statements, the local authority still has the power to do so, if it appears that the young person has learning difficulties and it is likely that they will receive post 16 education.
- The LDA should identify the young person’s needs and appropriate provision that can actually and realistically be provided to meet them.
- An LDA is normally carried out in the last year of a young person’s compulsory education. It is important that the referral takes place early, to ensure there is enough time to consider and commission appropriate education and support before that person leaves education at 16.
- The LDA must recommend a specific placement to meet the young person’s educational needs.
- If no LDA is being carried out for your child and you think they should have one, you should make a formal request to the local authority for an LDA to be carried out. If they still refuse to carry out an LDA, you could make a formal complaint to the local authority, or consider issuing judicial review proceedings. Similarly, if you are dissatisfied with the provision within the LDA, you should make a formal complaint and/or seek timely legal advice.
3. Consider pro bono representation schemes if advice or representation is needed and you are not able to get legal aid
It is becoming increasingly difficult to obtain legal aid to fund advice and assistance from solicitors for education matters, particularly appeals to Tribunal where eligibility is based on parents financial means. You can check if legal aid is available through contacting the Legal Aid Agency’s Telephone Gateway Service on 0845 345 4345.
If you are not eligible for legal aid, challenging a decision can be expensive. However there are numerous charities and organisations that offer legal advice and information on education and disability law. Various organisations will also help with advocacy and representation on a pro bono basis, if necessary. Details of some of these organisations are set out below:
- Independent Parental Special Educational Advice - IPSEA's trained volunteers give free, legally based independent advice and support in England and Wales. They have two helplines:
o General Advice Line: 0800 018 4016 Advice on: Problems with schools; requesting statutory assessment; proposed statements; annual reviews; possible disability discrimination; exclusion from school, etc.
o Tribunal Help Line : 0845 602 9579 Next-step advice on SEN appeals and disability discrimination claims to the Special Educational Needs and Disability Tribunal. When you call they will assess whether you need casework support.
- Disability Law Service – free legal advice for disabled people and their families/carers throughout Britain
- The Law Centres Network – national network of law centres which can offer legal advice, casework and representation
- The Bar Pro Bono Unit – can offer pro bono assistance in cases where people cannot afford to pay and legal aid is not available.
Eleanor is a partner at Maxwell Gillott, experts in the health and education law. Eleanor specialises in all aspects of education law including provision for children with special educational needs, school exclusions and admissions, disability discrimination, cases involving children without school places, and some further and higher education work. She also deals with care issues arising in connection with children’s educational and disability.
Eleanor's advice is:
1. Always try if possible to keep a good relationship and communication going with your child’s school. If they support you, you have a much better chance of getting the right help for your child, and anyway you are likely to have to deal with them for some time and it doesn’t help your child to be at loggerheads with them. If they are being unreasonable and/or unhelpful, you will still generally get further by trying to use persuasion and, particularly, evidence, rather than shouting at them.
2. On the other hand, if they tell you “We’ve got many worse than your child” ignore them. It’s not a valid excuse for failing to give your child the support they need. Also ignore them if they tell you it is not worth applying for a statement because the local authority never gives it, or because you won’t get any extra help through a statement.
3. Likewise never take what a local authority education or social services department tells you about your child’s legal entitlement on trust – always check.
4. Get your own copy of the SEN Code of Practice, and make sure you read the parts that apply to you.
5. Keep a file going with copies of all communications about your child’s education, notes of phone calls etc. If you have a home/school book, copy it regularly, and file the copies.
6. You don’t have to wait for the school to make a referral for statutory assessment leading to a statement, you can do it yourself.
7. Don’t accept a proposed or final statement that is full of vague wording like “X would benefit from …” or “X will receive regular support … “ Your child is entitled to have support that is specific and quantified, both so that people working with them know what they should be doing and so that you can enforce it if necessary.
8. If you have to go to the tribunal, you really need independent experts who are familiar with tribunal appeals and not afraid of giving evidence at them.
9. If your child can’t cope in school, try to get medical authorisation: it will get the attendance officer off your back, and help you in getting home education.
10. In that connection, if your child needs home education, don’t settle for the usual offer of 5 hours a week. Your child is entitled to at least 10-15 hours a week.
11. If your child’s difficulties are such that they couldn’t walk to school on their own or travel by public transport, they are probably entitled to have it supplied by the local authority. Don’t be put off by claims that they’re not entitled because you live less than three miles from the school, or by suggestions that you should use money like disability benefit for this purpose – the council has a duty to provide transport irrespective of means.