Statementing and The Education Act 1996

Robert Love, solicitor, examines the legal aspects

The Education Act 1993 made some very important changes to the Education Act 1981 and the law relating to children with special educational needs.  These changes are now consolidated in the Education Act 1996.  The Code of Practice and the SEN Tribunal were the major innovations as was the enforcement of strict time limits for completing assessments of special educational needs by Local Education Authorities.

A child has special educational needs if he or she has a learning difficulty which calls for special educational provision to be made.  A ‘learning difficulty’ is defined as being:

(a) The child has a significantly greater difficulty in learning that the majority of children of his age.

(b) A child has a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided
     for children of his age in schools within the area of the Local Education Authority.

(c) He is under the age of five years  and is or would be if special educational provision were not made for him likely to fall within
     paragraph (a) or (b) when over that age.

Special educational provision means:

(i) In relation to a child who has attained two, educational provision which is additional to or otherwise different from the educational
   provision made generally for children of his age in schools maintained by the LEA (other than special schools) or grant maintained
   schools in their area and

(ii) In relation to a child under that age educational provision of any kind.

Examples of children affected may be children with dyslexia or some mental or physical impairment which affects their ability to learn.  It is irrelevant whether the child is at an independent school; the LEA still has an obligation to that child.

If the LEA decides that a child has special educational needs and it is necessary for the LEA to determine the special educational provision which any learning difficulty he may have calls for, then it makes an assessment of the child’s educational needs.  The LEA will serve a formal notice on t he child’s parents informing them of their intention to make an assessment.  The LEA may initiate the assessment of its own volition; parents have the right to request the LEA to assess and, if an assessment has not been made within the previous six months and it is necessary for the Education Authority to make an assessment, the LEA is under a duty to comply with the request.  If it refuses, the parents may appeal to the Tribunal.  The Tribunal can either dismiss the appeal or order the Education Authority to arrange for an assessment.  Parents may need to obtain their own expert’s report and submit this to the LEA as part of the assessment.  The LEA seeks a contribution from the parents as well as educational, psychological and medical advice, advice from Social Services and any other advice the LEA considers appropriate to obtain.

The LEA is under a duty to identify all of the child’s educational needs and to make provision for each and every need.  If it determines that the school can meet some of the needs, then it must still make a Statement but must specify which of the identified needs the LEA will make provision for and which the school will provide for.  In the case of a child with speech and language difficulties, the issue of whether or not speech therapy is an educational need is very often contentious with the LEA frequently seeking to make it the responsibility of the Local Health Authority.  The Local Health Authority will only provide what is available but the LEA will have to provide speech therapy if it is established as an educational need.  The help proposed by the LEA must be quantified and specified in terms of hours per week (4.28 of Code of Practice and see L –v- Clarke and Somerset (1998) ELR 1998 (QBD).

If, after making an assessment, the LEA decides that it is not going to issue a Statement, the parents may then appeal to the SEN Tribunal which may order the LEA to issue a Statement although surprisingly the Tribunal has no power to stipulate what the contents of the Statement should be.  If the LEA decides that the child’s needs are such that it must make provision for them, it will issue a Proposed Statement.  The parents have 15 days in which to request a meeting with an officer of the LEA to discuss the Proposed Statement and/or to make written representations.  Within 15 days of such a meeting or meetings with the various professionals who have contributed advice to the LEA which is attached to the Statement, eg with the LEA Educational Psychologist.  Following those meetings, the LEA can then decide to do any of the following:

(i) make a Final Statement in the form as originally proposed;
(ii) alter the Statement in some way;
(iii) decide not to make a Statement at all.

When a Final Statement is issued by the LEA parents may appeal to the Tribunal.  The appeal must be made within two months and the appeal will take about three to four months to be heard.  Detailed grounds of appeal need to be given.  There are strict time limits on the submission of written evidence and evidence in written form will not normally be accepted out of time unless it is an exceptional case.  Each side is limited to two witnesses and either or both may be legally represented.  Indeed, for parents who may find such an appeal quite overwhelming, legal representation is of considerable benefit.  The Tribunal’s decision is binding and there is no further right of appeal save to the High Court on a point of law.  This must be issued and served within 28 days – time limits are strictly applied.  In certain circumstances there is a right (to be exercised within ten working days) to ask the Tribunal to review its decision.

Parents may appeal to the Tribunal, which has a legally qualified Chairman, if they disagree with the identification of the needs or provision or the fact that no school may be named on the Statement:

(a) when the Statement is first made;
(b) where the description in the Statement of the needs or provision is amended or where, after conducting an assessment, the LEA
    determines not to amend the Statement

On an appeal against a Final Statement, the Tribunal may:

(a) dismiss the appeal;
(b) order the LEA to amend the Statement insofar as it relates to the assessment of the child’s educational needs or provision and
    the Tribunal may also make such other consequential amendments as it thinks fit, or order the LEA to cease to maintain the
    Statement.  The Tribunal cannot order the LEA to specify any named school in the Statement unless the parent has expressed a
    preference for the school which can either be a maintained, grant maintained or grant maintained special school (ie, not an
    independent school) or the parent, the LEA or both have proposed the school (this could be an independent school).

Parents may also appeal to the SEN Tribunal against a decision by an LEA to cease to maintain a Statement.  The Tribunal’s jurisdiction does not extend to children over 16 who are not attending school (but can extend in certain cases up to 19 when the child attends school).

Legal Aid (although see below for comments on the Legal Advice and Assistance scheme) is not available for any part of the Statement procedure or appeals to the SEN Tribunal.  Legal Aid is currently available to the child for Court proceedings such as Judicial Review or an action for damages for negligence against the LEA and in that respect the child’s means only are assessed. 

Judicial Review is a remedy available at the discretion of the Court.  The Court of Appeal have decided (S –v- SEN Tribunal and Westminster) that only parents or the LEA may appeal decision of the Tribunal to the High Court and that the child cannot and this means that unless the parents qualify for Legal Aid in their own right many parents will be unable to appeal decision of the Tribunal due to the cost of such proceedings.  Parents can still ask the Tribunal for a review of its decision in certain circumstances.  Legal Advice under the Legal Advice and Assistance Scheme may be available to parents on low incomes but its scope is limited and does not cover legal representation at a Tribunal Hearing.

The Special Educational Needs and Disability Bill was introduced in Parliament on 7th December 2000.  In general the provisions of the Bill are to be welcomed.  The aims of the Bill in relation to children with Special Educational Needs are as follows:-

(i) to strengthen the right of children with special educational needs to be educated in mainstream schools;

(ii) to require Local Education Authorities to arrange for parents of children with special educational needs to be provided with advice
    and information on special educational needs matters and a means of resolving disputes with schools and LEAs;

(iii) to require schools to tell parents where they are making special educational provision for their child and allow schools to request
     a statutory assessment of a pupil’s special educational needs.

There is one specific area that concerns the author and that is that the present Bill provides that where parents have made suitable alternative arrangements for a child’s education, the LEA shall be under no obligation to name a school in Part 4 of a child’s Statement.  This has the effect of unfairly penalising parents who have been pressed into making emergency placements at independent schools because as things stand should the Bill be enacted in its present form with this clause in it, parents who place their children in independent schools and then approach an LEA for an assessment with a view to the issue of a Statement of Special Educational Needs will stand virtually no prospect of the LEA ever accepting responsibility for funding the child’s placement.

The Government also proposes to introduce a revised SEN Code of Practice and SEN Tribunal Regulations when the Bill becomes Law.  A draft revised SEN Code of Practice was the subject of a consultation process between July and October 2000.  One points of concern raised by many was the proposal in the draft revised Code of Practice to effectively remove the need for a Statement to be very specific in terms of support etc.  In response to these concerns the Government has decided to retain the requirement to specify provision and the revised Code will emphasize the need for Statements to provide a full description of the child’s special educational needs and to detail clear and specific provision.  Obviously it is regrettable that at the time of production of the article the revised Code of Practice and Regulations are not available. 

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