Special Educational Needs Law and EHCPs

Every fellow solicitor has the potential to come into contact with a child or young person with special educational needs, either professionally or personally. Many solicitors specialising in clinicial negligence and personal injury will be well versed in handling matters for children or young people who have additional needs, for example due to an acquired brain injury or cerebral palsy. However, for other solicitors we are told it is coming up increasingly often given the current financial climate and budget constraints within Local Authorities. Northamptonshire is not alone in being an area with an increasing amount of children with additional needs, high pressure on special school places and appeals to the SEN Tribunal.

More and more families are not receiving the support their disabled child requires and often ask a trusted legal adviser, in another field, for a suggested solicitor to assist. Therefore, I hope you will find the below interesting and useful for any potential client query or personal matter.

Getting the best education for their child is something that every parent worries about. For children with special needs, that is even more important.

So what can parents do if they are concerned that their child is not in the right school, or is not getting the specialised help they need?

Parents can request an Education, Health and Care Needs Assessment leading to the issue of an Education, Health and Care Plan (‘EHCP’). An EHCP is a legal document that describes a child’s special educational needs, the additional support required and the right school place (among other things) in which those needs should be met. It is a vital document and one that forms the bedrock upon which the best possible education can be built.

EHCPs

EHCPs cover the age range from birth up to 25 years and there is a real focus on the views and wishes of the children or young person and their family to be taken into account by Local Authority Special Educational Needs Departments when drawing up EHCPs. An EHCP is a powerful tool, but it is only effective if it specifies and quantifies exactly what support a child needs.

As EHCPs are legal documents it is crucially important that the content is right, and all the required support is detailed within them. The majority of EHCPs that we review for clients who have had no specialist advice are woefully inadequate and unlawful. The impact of this is that the children and young people are not receiving the vital therapies and provision they require, and are often placed in the incorrect school or college.

The provision and support that a child or young person requires within school or college must be very clearly detailed, ‘specified and quantified’ in order to be legally enforceable and for the correct level of funding to be provided by the Local Authorities.

If special educational provision within an EHCP is withdrawn by a Local Authority, or not provided for any reason then it is possible to judicially review the Local Authority. This is only possible if there is no ambiguity within Section F of the EHCP about the provision that must be arranged and funded. An example of this is for a child who has written into Section F of their EHCP that they “must be provided with physiotherapy, direct from a qualified physiotherapist for a minimum of 30 minutes per day”.

EHCPs must be reviewed at least every 12 months. The school, parents/carers, child or young person, Local Authority representative and any relevant other professionals should be invited to attend and contribute to this review. This is a good opportunity to request any amendments to the EHCP, if the content is no longer sufficiently clear or if the child/young person’s needs have changed. The Local Authority makes a decision following the review about whether or not any amendments to the EHCP will be made. If no amendments are made, but were requested then an appeal to the Special Educational Needs and Disability Tribunal may be pursued. If amendments are to be made then an amended draft EHCP will be issued and comments invited. If parents are not happy with the final amended EHCP then they will also have a right of appeal to the Special Educational Needs and Disability Tribunal.

Appeals to the SEN Tribunal

Parents, and young people themselves can challenge the content of an EHCP, and this is done by appealing to the Special Educational Needs and Disability Tribunal. There is a requirement for mediation to, at least, be considered before any appeal is lodged.

Appeals are a relatively complex and paperwork heavy process, with many parents and young people opting to receive legally based advice and assistance rather than tackle it on their own. Local Authorities will often instruct solicitors and barristers to represent them in these appeals.

The strength of any appeal and the prospects of success are determined by the evidence available and how it is presented to the Tribunal and Local Authority, as respondent to the appeal. Seeking expert advice, ideally before lodging an appeal is going to give the case the best prospects of success.

Case Study

I recently dealt with a tribunal appeal for Oscar Gerring, whose parents spent months trying to obtain an EHCP specifying a specialist school that would appropriately meet their son’s needs. The youngster was attending his local primary school, which his parents knew was not suitable. The school seemed to have little understanding of the impact of his autism - how he was able to engage with learning and how he could make progress - and his high anxiety.

The effects of being in the wrong school with little or no provision was felt by the whole family. The fact he was not receiving the support he needed led to him threatening self-harm and he was under the care of Child and Adolescent Mental Health Services.

His parents wanted him to attend a local independent special school that was able to meet his needs. The Local Authority refused to pay for the placement, despite it only being £5,000 more expensive per year than his current school.

I was instructed by the parents to undertake an appeal on their behalf to the Special Educational Needs Tribunal. As a result of my assistance and expertise this appeal was successful and their son now attends the parent’s independent special school of choice.

The Appeal to the SEND Tribunal was ultimately successful, but only because expert advice, evidence and opinion was obtained to support the case. Some of that was in the form of my legal advice, but marshalling advice and opinion me relevant experts was also crucial.

The parents recently got in touch to thank me and said it’s like having their son back, as he is so happy to go to school, is making progress and the family as a whole is much happier. Having my help and expertise not only secured the right result at appeal for their son, but also took a lot of the stress out of the process.

I am often instructed internally be colleagues, but also increasingly externally by fellow solicitors, case manager and independent experts. Expert advice in this complex and niche area of law is essential and I hope by having read this article you will feel more informed to assist clients, colleagues, friends and family to be more aware of their legal rights in relation children with special educational needs. I, and my team, are always happy to speak to anybody with an initial query and we often run seminars and workshops for parents and professionals.

Victoria Federico - Solicitor and Head of Education Law, Shoosmiths