A Statement of SEN
|'I have in my hand a piece of paper..'|
This is the beginning and not the end of your journey. Getting a statement is just the first step to ensuring your child's needs are met in school.
In theory, it offers essential legal protection ensuring that your child has clearly identified needs and provision to meet those needs.
In practice, er.....not so much..........
Often, getting a statement leads only to numerous further battles: ensuring your child is supported by a properly qualified and trained TA, ensuring your child is still a part of the class and is properly included, ensuring the provision is in place as legally required, ensuring SMART targets are set for the provision so that your child makes progress. It can seem that getting a statement feels like the end of things for LAs who churn out block contracted services to statemented children. But these services may be more interested in 'outputs' (e.g. meeting the number of SLT statementing visits) than 'outcomes' (that your child actually makes progress because of the intervention). The battle for measurable progress seems inexplicably controversial and it starts rather than ends with a statement.
This summary is intended as a guide to the different parts of the statement which may be of assistance when dealing with a proposed or final statement. It is not a substitute for legal advice. It is helpful to refer to the law or SEN COP where they are relevant but if the Code and the law say the same thing, quote the Act or the case law as LAs have a stronger duty to obey the law than they do the SEN COP.
If the local authority decides, after a statutory assessment, that your child needs a statement, they will send you a proposed statement, which is divided into six parts. Parts 2, 3 and 4 are the vital sections as they set out the child's SEN, the provision the local authority is legally bound to provide to meet them and the nature of the child's school placement.
Statements have to be intelligible to people who have to read them and not just to their authors. The parties have to be able to reach a good understanding of what the words mean. It is no good if they are ambiguous: T v Hertfordshire  EWCA Civ 1893.
So what should each part of the statement contain?
So what should each part of the statement contain?
Part 1 - Introduction
This contains the child's personal details such name and date of birth.
Part 2 - Special Educational Needs
Each and every special educational need should be set out. Part 2 should include all diagnoses. Part 2 can also include narrative description of a child.
It is the local authority's statutory duty to decide on the child's needs and the provision required to meet those needs based on evidence. In relation to Part 2 of the statement, para 8:32 SEN COP confirms that
the advice received may contain conflicting opinions or opinions open to interpretation, which the LEA must resolve, giving reasons for the conclusions they have reached.
If the local authority follows the recommendations of their own professionals, ask them to give reasons why they reject your evidence.
Part 3 - Special educational provision
For each need identified, there should be matching help in Part 3. R v Secretary of State for Education ex parte E  1 FLR 377.If Part 2 is seen as the diagnosis of SENs, then Part 3 is the prescription for them.
Part 3 will set out the objectives that the provision is intended to meet and if something is identified as an objective, the statement should set out the provision intended to meet it: C v East Sussex CC  EWHC 3122 (Admin),  ELR 367
Objectives are often poorly worded and vague despite the fact that there is national guidance on how they should be phrased - found here.
Legally enforceable provision
Part 3 is legally binding and the local authority is under an absolute duty to put the provision in place. SEN COP says, at para 8.109, that local authorities must
arrange the special educational provision..... from the date on which the statement is made
This strict duty was confirmed in N v North Tyneside Borough Council  EWCA Civ 135. Here, the Court of Appeal confirmed that the obligation under the Education Act 1996 s324(5) to arrange the provision specified in a statement of SEN was absolute. It was not merely a 'best endeavours' obligation permitting the local authority to argue it had 'done its best' but failed to put the provision in place. If the local authority cannot organise the provision, or it becomes impossible to deliver it, they must apply to vary the statement. The provision specified in Part 3 can be enforced by the child through judicial review proceedings: R v Harrow ex parte M  FCR 761
Specified and quantified
The strictness of this duty protects the rights of vulnerable children but to ensure that the duty can actually be enforced at law (via judicial review - see 'What to do when things go wrong: judicial review') the wording of the statement must be very clear. So the law requires the provision to be specified and quantified. The statement should spell out all aspects of the provision which differ from the provision normally made in mainstream schools in the area. For example:
- Placement in a different year group: AB v North Somerset  UKUT 8.
- Different class sizes: H v Leicestershire  ELR 471.
- Staff qualifications/experience: e.g. “teacher who is experienced in working with pupils who have significant learning difficulties and autism/communication disorders”: R v Wandsworth ex parte M  ELR 424.
- Where small group work is involved, the size of the group, the length and frequency of the sessions: L v Clarke and Somerset  ELR 129.
- The need for and amount of 1:1 work: L v Clarke and Somerset  ELR 129.
- Input from other professionals, such as sessions of speech therapy: R v Harrow ex parte M  FCR 761.
- Under SENCOP, para 8.37, provision should be quantified in terms of hours (etc) except, exceptionally, by reference to the “changing needs of the child”.
Unfortunately, statements are frequently issued without specification and quantification. Do not accept this. Local authorities may try and argue that it is best to keep things 'flexible' for the school but the case law categorically rejects this IPSEA v Secretary of State  EWCA Civ 07. Any flexibility in a statement must be for the child and not the school's benefit.
Similarly, reject vaguely worded provision which means your child may have provision which is completely unlawfully unenforceable. Local authorities persistently insert terms/words like “as appropriate”, “as required”, "opportunities for", "access to", "upto ten hours one to one", “regular”, “periodic”, “subject to review”. But they know that these terms are all usually considered to be unlawful because they are unenforceable. This allows the local authority to sidestep its duty to put the provision in place and deprives the child of their SEN provision. TAKE ADVICE!
The courts have said that
the real question … is whether [the statement] is so specific and so clear as to leave no room for doubt as to what has been decided and what is needed in the individual case L v Clarke and Somerset  ELR 129).
This is because the requirement to specify is
not a bureaucratic purpose…[it] outlaws … a general statement …. in such broad terms that it could lead to specific needs being ignored or inadequately focussed upon…. the second purpose is that, once made in terms which are specific the purpose of the provision can be furthered and effected by enforceability….E v Flintshire  EWHC 388
Reference to funding “bands”is not an alternative to specifying/quantifying provision and any local authority policy of delegating “all” SEN funds to schools independently of the statementing regime is not an answer to an appeal against a refusal to assess or make a statement.Whatever the funding arrangements between the local authority and the school, they have no legal effect in terms of the child’s entitlement and the local authority remains ultimately responsible for making the provision if the school fails to do so: R v Oxfordshire ex parte C  ELR 153; R v Hillingdon ex parte Queensmead School  ELR 331.
Is provision educational or non-educational?
This is a matter of fact not law and the question of whether a particular type of provision (e.g. a kind of therapy or other intervention) is educational is a matter of fact for the local authority or the Tribunal to decide in each particular case. Bromley v SENT  ELR 260.
Remember local authorities cannot have blanket policies on this or any other issue. This means that when a public body has been given the power to make a decision, it cannot decide that it is going to apply this power in a particular way irrespective of individual circumstances. It must look always consider the facts of the individual case. Blanket policies are unlawful because they 'fetter discretion'. Port of London Authority ex p Kynoch Ltd  1 KB 176
In reality, there is no hard boundary between “educational” and “non-educational”A v Hertfordshire County Council  EWHC 3428 and you should take advice on provision which has been put in Part 6. Note, however, that it is very well-established law that speech therapy should be treated as educational (i.e. Part 3) unless there are “exceptional reasons for not doing so”: SEN Code para 8.49; X&X –v- Caerphilly BC EWHC 2140,  ELR 78. The Bercow Report described communication as a life skill and a fundamental right.
4 - Placement
This section states the type and name of school, or other education provision your child will attend.
Part 4 is left blank in the proposed statement so that you can consider different options before the final statement is issued. This is because, as the courts have made it very clear, the local authority must confirm at Part 2 and Part 3 before deciding on Part 4. This is because
part 4 cannot influence part 3. It is not a matter of fitting part 3 to part 4, but of considering the fitness of part 4 to meet the provision in part 3. R v Kingston upon Thames and Hunter  ELR 223 at 233C.and
It is important… to identify or diagnose the need before going on to prescribe the educational provision to which that need gives rise, and only once the educational provision has been identified can one specify the institution or type of institution which is appropriate to provide it. A v Barnet  EWHC 3368See also The Learning Trust v MP  ELR 658 and T v Neath Port Talbot  EWHC 3039.
Part 4 must set out the “type of school” which is considered appropriate (e.g. mainstream, special, residential, MLD, EBD, etc). But, unless
para 3(3) of Schedule 27 compels it, there is no absolute legal obligation to name a particular school: Richardson v Solihull  ELR319.
Under para 3(3) of Schedule 27 of EA 1996, if the parent has requested that a particular maintained school should be named, then Part 4 must name that school as long as it is:
- suitable to meet her or her needs
- his/her attendance would be compatible with the provision of efficient education for the children with whom he/she would be.A preference can only be displaced by a positive finding of “incompatibility with the efficient education of other children” and not merely by evidence of an impact on those other children: Hampshire v R & SENDIST  EWHC 626, (2009) ELR 371
- educated and the efficient use of resources. The local authority/Tribunal must balance the statutory weight given to the parental preference against the extra cost in deciding whetherthe extra cost is “inefficient”, and even if it is found to be “inefficient” the Tribunal must still then, as a second stage, balance the extra costagainst any extra benefit it is claimed to bring for the child: L v Essex  ELR 452It is only if the extra cost is “significant” that the parentally preferred placement is displaced Surrey CC -v- P  ELR 516. See also C –v- Lancashire  ELR 377.
If parents want a maintained mainstream placement, then section 316 Education Act means a child must be educated in the mainstream unless this would be incompatible with
- the wishes of the child’s parents
- or the provision of efficient education of other children.
Mainstream education cannot be refused on the grounds that the child’s needs cannot be provided for within the mainstream sector.In effect, the Education Act deems that, for all children, mainstream is suitable or can (and thus must) be made suitable, unless that results in incompatibility with the education of others.The local authority/Tribunal must also look at whether the incompatibility cannot be removed by the taking of “reasonable steps” MH v Hounslow  EWCA Civ 770
Section 316 may also be engaged if parents want a part-time mainstream placement unless it would be incompatible with the efficient education of other children. Pursuant to section 319, where it is not appropriate to make all of that provision at school, the rest can then be made out of school: MS v Brent  UKUT 50 (AAC) 3 February 2011. The first question to be asked is what does the child need (i.e. decide on Part 3) then decide if that can be provided in school: S v Bracknell Forest  ELR 51. When considering whether it would be “inappropriate” for provision to be made in a school, the local authority/Tribunal should ask if the school “would not be suitable” or “would not be proper”taking account of the circumstances of the case which would include the child’s background and medical history, the particular educational needs of the child, facilities that can be provided by a school and otherwise than at a school, the comparative costs of alternative provisions, the child’s reaction to the provisions, the parents’ wishes and any other particular circumstances that might apply.TM v Hounslow  EWCA Civ 859
Part 5 - Non-educational needs
These could be health needs which cannot be considered educational such as a medical condition like asthma.
Part -6 Non-educational provision
This sets out the help that will be given to meet the needs in part five, for example, monitoring by the health service. This is not legally enforceable. it is vital, therefore, that important educational provision such as occupational therapy or speech and language therapy are not relegated to this section.
This can get complicated. Transport may be put in a statement of special educational needs (in Part 6) when a child has particular transport needs.Unless someone else has made free travel arrangements, an LEA must make such travel arrangements as they consider necessary in order to secure that suitable home to school travel arrangements, for the purpose of facilitating an “eligible child’s” attendance at the relevant educational establishment in relation to him free of charge: s508B(1) Education Act 1996 . The Education and Inspections Act 2006 changed the position of children with SEN and disabilities needing home-to-school transport in England. Local authorities now have a duty to make necessary travel arrangements for all 'eligible children’, and a discretion to make travel arrangements for other children.
An 'eligible child' is a child of compulsory school age who lives beyond the statutory walking distance, or a child with SEN, or a child with a disability or mobility problems registered at a school within that distance who by reason of SEN etc cannot reasonably be expected to walk to school: Schedule 35B para 2 Education Act 1996.
The child must attend a 'qualifying school' i.e. maintained (publicly funded) schools ,non maintained special schools, pupil referral units, maintained nursery schools, city technology colleges and academies, and in the case of a child with a statement, an independent school if this is the only school or the nearest school named in Part 4 of the statement. Children who receive education somewhere other than at school can also qualify as eligible children.
As IPSEA say, "in practice deals are sometimes struck over school transport when parents are in dispute with their local authority over the costs of placement at different schools". A statement can, in Part 4, name a school on the basis of parental preference and subject to an expressed agreement by parents to transport the child to school without the statement identifying a particular fallback to which the LEA would send the child if the parents ceased to transport: M v Sutton  ELR 123.
Transport must be “non-stressful”: R v Hereford & Worcester ex p P (1992) 2 FCR 732.
- Request for statutory assessment
- Within 6 weeks of your request, the LA should confirm whether they are going to undertake an SA
- If it refuses, you have two months from the date of the decision letter to apply to Tribunal.
- If it agrees, it must ask for advice from parents, school, services etc within 6 weeks
- It must make a decision on whether to issue a statement within 10 weeks of its decision to assess
- If it decides to issue a statement, it must issue a proposed statement with the advices it has received within 2 weeks of its decision to assess. Alternatively, if it decides not to issue a statement, a notice in lieu should be issued within 2 weeks of the decision to assess.
- It must issue a final statement within 8 weeks of the issue of the proposed statement
- The cumulative effect of these time limits is that the period from the receipt of a request for a statutory assessment to the issue of the final copy of the statement should normally be no more than 26 weeks. A flow chart can be found at para 8:134 SEN COP. A pdf copy is available here
- Exceptions to the time limits are set out at paras 7:91-7:93
- IPSEA, the SEN charity, has some great information about SEN 'myths' and common problems encountered while applying for a statutory assessment
- SOS-SEN, another SEN charity, provides this useful summary on applying for a statutory assessment
- National Autistic Society has further information on its site.
- AFASIC, a speech and language charity, has guides you can purchase for a small fee.
- The Department of Education provides an explanation here
- ACE have more information on their website
- Contact a Family provide a summary on their website
- Mencap provide useful advice
- Solicitors Douglas Silas have a very handy video here
- Council for Disabled children have produced this chapter