Is your child's SEND being met?
Summer is fast approaching, the academic year is drawing to a close and parents are able to reflect on their children’s progress in the last 11 months or so. Whilst this should be an exciting time, for some parents it might be a worrisome or stressful experience, particularly if their child has special educational needs, for which appropriate provision is yet to be put in place.
I am regularly contacted by parents who feel that their child’s SEND is not being met and what is apparent is that, despite the introduction of the EHCP four years ago, the law remains confusing and navigating the process can be daunting and time consuming.
If a child is identified as having SEND, the Local Authority will carry out a needs assessment on request, but only if it considers that the child may need to be supported through an EHCP. An EHCP is a legal document which, once finalised, imposes certain statutory duties on Local Authorities and schools to ensure that the provision set out within the plan is provided to the child. Whilst it is often the case that a school, in conjunction with the parents, will ask the local authority to carry out the assessment, parents can approach the local authority directly (as can a young person over the age of 16). EHCPs are available from 0 to 25 years, if the young person remains in full time education.
The local authority can refuse to carry out an assessment if it considers that the child’s needs do not meet the relevant threshold and an EHCP is not required. However, the refusal is appealable to the First Tier Tribunal (after exploring mediation) within 2 months from the date of the decision. The tribunal can order the Local Authority to carry out the assessment if the parents are successful in their appeal. The right of appeal does not extend to schools.
If the Local Authority either agrees to assess or otherwise is ordered to assess on successful appeal, the Local Authority should accurately identify a child’s SEND and the provision required to meet that child’s needs. This will involve input from the child or young person, the parents, the school, an educational psychologist and other relevant professionals, including health professionals. Following the assessment, the Local Authority must decide whether to issue a plan at all. It can say no. If the Local Authority refuses to issue a plan, this is also an appealable decision. If the Local Authority agrees to issue a plan, certain parts of the plan can be appealed if a parent or young person disagrees with the content (Sections B (Needs), F (Provision) and I (Educational Setting).
Hopefully, tribunal can be avoided - there are discussions to be had between the parents and the local authorities to try and narrow any issues in dispute between them. The benefit of formal mediation should not be under-estimated. But whatever happens, parents should not feel that they have to go through the process alone. There is support out there for parents in navigating the process both through SEND charities or legal professionals and parents should not feel afraid to ask for help in understanding their legal rights and those of their children. Local Authorities are required by law to maintain a ‘local offer,’ which includes SEND services in their locality and this can be a great source of information for parents, when starting out or even during the assessment.
My advice to any parent embarking on this process is to be prepared. Be prepared in advance of submitting your request for assessment; be prepared in advance of any tribunal claim; be prepared to experience many different emotions along the way. It can be a long process, but the more prepared you are, the less daunting it becomes.