Help with special educational needs.

Parents and carers of children with special educational needs or disabilities may face considerable difficulty securing suitable education and support. A child may need adjustments, specialist teaching, therapy, equipment or a different educational setting. Disagreements can arise about whether support is necessary, how much should be provided and which School or college can meet the child's needs. This guide explains the SEND system in England. Different legislation and procedures apply in Wales, Scotland and Northern Ireland.

What Are Special Educational Needs?

A child or young person has special educational needs if they have a learning difficulty or disability that means they require special educational provision. This may include needs relating to:

• Communication and interaction;
• Cognition and learning;
• Social, emotional or mental health;
• Sensory or physical needs;
• Autism;
• Dyslexia and other specific learning difficulties;
• Attention deficit hyperactivity disorder;
• Speech, language and communication;
• Visual or hearing impairment; and
• Physical or medical conditions affecting access to education.

A medical diagnosis can be useful evidence, but a child does not always need a formal diagnosis before receiving SEN support or being considered for an Education, Health and Care needs assessment. The relevant question is how the child's needs affect their learning and what additional or different provision is required.

Special Educational Needs and Disability

Special educational needs and disability are connected but are not identical. A child may be disabled under the Equality Act 2010 without having special educational needs. Equally, a child may have special educational needs without meeting the legal definition of disability. Schools and other education providers must not discriminate against disabled pupils. They may have duties to make reasonable adjustments and provide auxiliary aids or services to prevent disabled children from being placed at a substantial disadvantage.

Support Without an EHC Plan

Most children with special educational needs receive support through their nursery, School, or college without needing an EHC plan. In schools, this is commonly known as SEN Support. The School should identify the child's needs and follow a cycle of:

• Assessing the child's needs;
• Planning the support to be provided;
• Putting the support into place; and
• Reviewing whether it is working.

This is often described as the "assess, plan, do, review" cycle. Support may include:

• Adapted teaching methods;
• Small-group or individual intervention;
• Additional adult support;
• Speech and language programmes;
• Literacy or numeracy support;
• Sensory or communication aids;
• Pastoral or behavioural support;
• Changes to the classroom environment; and
• Advice from outside specialists.

The support should be based on the child's individual needs rather than simply on the name of a diagnosis.

Speak to the School

If you are concerned about your child's progress or support, begin by speaking to the class teacher, form tutor or special educational needs coordinator, commonly called the SENCO. Ask:

• What needs the School has identified;
• What support is currently being provided;
• How often and by whom it is delivered;
• What progress is expected;
• How the support will be reviewed;
• Whether outside professionals should be involved; and
• What evidence the School is keeping.

Requests and important discussions should be confirmed in writing. Keep copies of reports, support plans, emails, meeting notes and examples of your child's work.

Education, Health and Care Needs Assessments

Where a child or young person may need more support than is normally available through the education setting, an Education, Health and Care needs assessment may be required. A request can be made by:

• A parent;
• A young person aged over 16 but under 25;
• The school or college; or
• Another person acting with the knowledge and agreement of the parent or young person.

You do not have to wait for the School to make the request. The legal test is whether the child or young person has or may have special educational needs, and whether special educational provision may be necessary to be made through an EHC plan. The local authority should consider the legal test rather than insist that a child has completed a fixed number of interventions, has a particular diagnosis or is a certain number of years behind academically.

Evidence for an EHC Needs Assessment

A request should explain:

• The child’s identified or suspected needs;
• How those needs affect education and participation;
• What support has already been tried;
• Why the existing support is insufficient;
• Any deterioration in attendance, behaviour or wellbeing;
• What specialist provision may be required; and
• Why an EHC plan may be necessary.

Useful evidence can include:

• School reports and SEN support plans;
• Educational psychologist reports;
• Speech and language assessments;
• Occupational therapy reports;
• Medical evidence;
• Attendance and exclusion records;
• Correspondence with the school;
• Independent professional reports; and
• The child or young person’s own views.

What Is an EHC Plan?

An Education, Health and Care plan is a legally binding document for a child or young person aged up to 25 who requires provision beyond that ordinarily available. It should describe:

• The child or young person's special educational needs;
• The outcomes being sought;
• The special educational provision required;
• Relevant health and social care needs and provision;
• The school, college or other placement;
• Any agreed personal budget; and
• How progress will be monitored.

The educational provision in the plan should be clear, detailed and specific. Vague wording such as "access to support", "opportunities for therapy" or "support as required" may make it difficult to establish exactly what must be delivered. Where an EHC plan is maintained, the local authority has a legal duty to secure the special educational provision specified in it.

Choosing a School or College

Parents and young people may request that a particular school, college or approved specialist setting be named in the EHC plan. Depending on the type of setting, the local authority must generally agree unless it can establish that:

• The placement would be unsuitable for the child's age, ability, aptitude or special educational needs;
• The attendance of the child would be incompatible with the efficient education of others; or
• The placement would involve an inefficient use of public resources.

Disputes frequently concern whether a mainstream school can meet the child's needs, whether specialist provision is necessary and whether the proposed placement can deliver everything specified in the plan.

Reviewing an EHC Plan

An EHC plan must normally be reviewed at least once every 12 months. The annual review should consider:

• The child or young person's progress;
• Whether the outcomes remain appropriate;
• Whether the identified needs have changed;
• Whether the provision remains sufficient;
• Whether the placement is suitable; and
• Whether the plan should continue, be amended or cease.

For children under five, reviews may need to take place more frequently. An annual review meeting does not, by itself, amend the plan. The local authority must issue a formal decision following the review.

When the Provision Is Not Being Delivered

A suitable EHC plan is of limited value if the provision written into it is not actually supplied. If support is missing:

• Identify the exact provision specified in the plan;
• Keep a record of what has and has not been delivered;
• Raise the matter with the School and SENCO;
• Write to the local authority's SEND department;
• Request an urgent review where appropriate; and
• Obtain legal advice if the failure continues.

The local authority cannot generally avoid its duty merely because a school lacks staff, funding or access to a particular service. A continuing failure to secure provision may be challenged through the complaints procedure, the Local Government and Social Care Ombudsman or, in urgent or serious cases, judicial review.

Appealing to the SEND Tribunal

Parents and young people may appeal to the First-tier Tribunal for Special Educational Needs and Disability against certain local authority decisions. Appeals may concern:

• A refusal to carry out an EHC needs assessment;
• A refusal to issue an EHC plan following an assessment;
• The description of special educational needs;
• The special educational provision specified;
• The School or placement named;
• A refusal to reassess;
• A refusal to amend the plan following a review or reassessment; or
• A decision to cease maintaining the plan.

Where an appeal concerns the educational sections of an EHC plan, the Tribunal may also make non-binding recommendations concerning health and social care matters. Strict deadlines apply. The deadline will usually be two months from the local authority's decision letter or one month from the date of the mediation certificate, whichever is later.

Mediation

Before most SEND Tribunal appeals, the parent or young person must contact a mediation adviser and obtain a mediation certificate. It is not normally compulsory to participate in mediation. An exception applies to appeals dealing only with the School or other placement named in the plan, where contacting a mediation adviser is not usually required. Mediation can provide an opportunity to resolve the dispute, but families should remain aware of the appeal deadline and avoid allowing negotiations to cause it to expire.

Disability Discrimination

The SEND Tribunal also deals with disability discrimination claims against schools. A claim may arise where a school:

• Treats a disabled pupil unfavourably because of something arising from the disability;
• Fails to make reasonable adjustments;
• Applies a policy that places disabled pupils at a particular disadvantage;
• Harasses a pupil because of disability; or
• Victimises a pupil following a complaint.

Disputes can concern admissions, exclusions, discipline, school trips, access to lessons, physical accessibility and the provision of auxiliary aids. The time limit for a school disability discrimination claim is generally six months from the act complained about.

Exclusions and Attendance

Children with SEND are sometimes excluded or placed on reduced timetables because their needs are not being met. A school should not use exclusion simply because it cannot provide suitable support. It must also consider whether behaviour is connected with a disability and whether reasonable adjustments are required. A reduced timetable should be exceptional, temporary, regularly reviewed and agreed with the parent. It should not be used as a long-term substitute for suitable full-time education. Seek advice promptly where:

• Your child is repeatedly sent home informally;
• You are asked to collect your child without a formal suspension;
• A reduced timetable has no clear end date;
• Attendance action is threatened despite unmet needs; or
• Your child is unable to attend because the placement is unsuitable.

Diagnosis and Support

Some parents worry that a diagnosis may negatively label their child or affect future opportunities. A diagnosis should not be treated as defining a child's ability or potential. It may help professionals understand the child's needs and identify appropriate support, although support should not be withheld merely because an assessment or diagnosis is still pending. The decision to pursue a medical or developmental assessment should be based on the child's circumstances and discussed with suitable health and education professionals.

Useful Sources of SEND Support

Parents and young people may obtain information and assistance from:

• The school or college SENCO;
• The local authority's published Local Offer;
• The local SEND Information, Advice and Support Service, known as SENDIASS;
• IPSEA, which provides independent SEND legal information;
• Contact, which supports families with disabled children;
• Government SEND guidance; and
• A solicitor specialising in education and SEND law.

When to Contact a SEND Solicitor

Specialist legal advice may be useful where:

• The local authority refuses an EHC needs assessment;
• An EHC plan does not accurately describe the child's needs;
• The provision is vague or insufficient;
• The wrong School or type of placement is named;
• Provision in the plan is not being delivered;
• The child has been excluded or placed on an unsuitable reduced timetable;
• The local authority proposes to end the plan;
• There is a disability discrimination issue; or
• An appeal or judicial review deadline is approaching.

Education and SEND law is specialised, and not every family solicitor deals with it. When contacting a firm, ask whether it regularly conducts EHC plan and SEND Tribunal cases. To find an Education Law or Special Educational Needs Solicitor, use the search facility at the top of this page. We recommend contacting several firms to compare their experience, proposed approach and fees.