Useful Information

What is a Statement of Special Educational Needs?

A Statement of Special Educational Needs (SEN) is a legally binding document drawn up by a Local Authority that sets out in detail a child's Special Educational Needs and the required educational provision relating to those needs. The purpose is to ensure that the child receives an adequate level of educational provision in support of his or her needs. Parents like Statements of Special Educational Needs because if drafted properly it ring fences a child's provision. A Statement comprises of the following parts:

  • Part 1 gives general information about your child including your name and address(there is no right of appeal in relation to this section), but can be modified by writing to the Local Authority.
  • Part 2 gives details of your child's needs and functioning.
  • Part 3 describes the support (provision) that you child will receive. This section should be specific, detailed and quantified (although often it is not). This section is legally enforceable against the Local Authority (as opposed to the school or NHS Trust).
  • Part 4 names the school that your child will go to, and the named school must be capable of providing the support set out in Part 3. Therefore, any appeal against Part 4 should be made in conjunction with Parts 2 and 3 - the Parts are interrelated.
  • Part 5 describes any non-educational needs you child may have (there is no right of appeal against this section);
  • Part 6 describes the help that your child needs to be given for the non-educational needs. (There is no right of appeal against this section) and provision is not legally enforceable.

Whilst many parents come to us seeking help in obtaining a Statement, we can also help those who have an unsatisfactory Statement and need help appealing to the Special Educational Needs and Disability Tribunal to seek an amendment. Often, the main bone of contention is that the Statement specifies a school which the parents are not happy with. However, other issues can arise such as the amount and type of support for the child being specified in the Statement, e.g. relating to Speech Therapy or specialist Dyslexia teaching; ASD Advisory teacher input; Occupational Therapy or Physiotherapy or input from a Specialist Teacher of the Deaf or Visually Impaired. SEN Legal has considerable experience in dealing with the variety of situations that can arise when the content of Statement is disputed.

How can I get a Statement of Special Educational Needs for my child, and how long does it take?

This is essentially a two-stage process:

  • First, a request is made by either the parent or the school to the Local Authority, which will then decide whether to make an Statutory Assessment;
  • Second, if a Statutory Assessment is completed, the Local Authority will decide whether to draw up a Statement of Special Educational Needs.

A statutory timetable is provided by the Education (Special Educational Needs) (England) (Consolidation) Regulations SI 2001 No. 3455 which is as follows:

  1. After having received a referral, the Local Authority has 6 weeks to decide whether it will undertake a Statutory Assessment.
  2. If the Local Authority decides not to undertake a Statutory Assessment, it is possible to appeal to the Special Educational Needs and Disability Tribunal (SENDIST). The Local Authority must tell the parents of their right of appeal.
  3. If the Local Authority decides to undertake a Statutory Assessment, then from the date on which the Assessment begins the Local Authority has 10 weeks to complete this task.
  4. Once the Statutory Assessment is completed, the Local Authority will then decide whether a Statement of Special Educational Needs is necessary. If the outcome is negative and the Local Authority decides not to finalise a Statement of Special Educational Needs, but instead issue a Note in Lieu (which confers no provision or legal rights), parents are entitled to make an appeal to the SENDIST(and parents must be informed of their right of appeal).
  5. If the Local Authority decides to make a Statement, a Proposed Statement will be drawn up within 2 weeks of this decision.
  6. Parents are then asked to submit their comments on the Proposed Statement within 15 days.
  7. Within 8 weeks of issuing the Proposed Statement, the Local Authority must provide parents with the final Statement. This includes time devoted to negotiations between the parents and the Local Authority about what the Statement should include.
  8. In total, the process should be completed within 26 weeks. However, it is not uncommon for Local Authorities to overrun statutory time limits and occasionally legal assistance is required in order to secure finalisation of the Statement. If parents are unhappy with the content then they may exercise their right of appeal to the Special Educational Needs and Disability Discrimination Tribunal. It is not possible to appeal unless the Statement is finalised.

Local Authorities are painfully slow and tend not to comply with statutory time limits. In the criminal courts, there is a maxim "Justice delayed is Justice denied". In the SEN context, provision delayed is provision denied.

"Working Together" does not justify delay.

For those unfamiliar to it, the Statementing process is both complicated and daunting and Local Authorities often overrun statutory timescales. It is also vitally important. A child's Statement of Special Educational Needs will determine what the relevant provision for his or her Special Educational Needs is and it is of critical importance that this is done properly if the child is to fulfil his or her potential. With our experience of all matters relating to Special Educational Needs and the Statementing process, SEN Legal is well placed to offer the best advice, support and representation to ensure that your child acquires an adequate Statement.

Why is a Statement of Special Educational Needs Necessary?

The Statement is essential to protecting your child's access to education and to everything that is included, for example specialist teaching, Speech Therapy, Physiotherapy, Occupational Therapy, school transport or any other specialist support. The Statement is the key to achieving an adequate level of educational provision for your child. If the provision detailed in Part 3 of the Statement is sufficiently specific (and this is a legal requirement in itself), it is legally enforceable and so your child's provision will be ring-fenced.

My child's Proposed Statement does not have a school named on it. Why is this so?

No school may be named in the Proposed Statement Special Educational Needs so that you can make representations to the Local Authority about your preferred school without the Local Authority pre-judging your choice. However, a school is often named in the Local Authority's covering letter. If you disagree with this school, representations need to be made to the case workers as to why your choice of school is better placed for meeting your child's needs.

The alternative to this course of action is to ask the LEA to finalise the Statement with a view to having it re-written during an appeal to the Special Educational Needs and Disability Tribunal (SEND). If you choose not to enter into negotiations, this will not prejudice your position at the SEND Tribunal hearing. The SEND Tribunal is required to look at the child's needs at the date of the hearing, so it does not form a view about whether you chose to meet with Local Authority representatives and negotiate the content of the Statement.

However, it should be borne in mind that whether or not you choose to negotiate, an appeal to the SEND must be submitted within 2 months of receiving the Final Statement. This time period is strict and is not extended because of time spent negotiating.

What is the Special Educational Needs and Disability Tribunal, and what matters does it deal with?

SENDT is an acronym for the Special Educational Needs and Disability Discrimination Tribunal. It used to be a stand-alone tribunal, but as of 3rd November 2008 it became part of the Tribunal system of England and Wales. The Tribunal Service is comprised of two parts: several first-tier Tribunals dealing with specialist areas and the Upper Tribunal. Appeals start off in the first-tier Tribunal, and further appeals on points of law move up to the Upper Tribunal. The Upper Tribunal replaces the High Court. Any appeal from the Upper Tribunal goes direct to the Court of Appeal.

The SEND Tribunal has jurisdiction to hear appeals on the following matters relating to Special Educational Needs (SEN):

  • Decisions of Local Authorities to not carry out a Statutory Assessment;
  • Decisions of Local Authorities to not finalise a Statement of Special Educational Needs after a Statutory Assessment is completed and instead issue a Note in Lieu (which does not confer legally enforceable provision);
  • Decisions of Local Authorities not to amend a Statement following a re-assessment;
  • Decisions of Local Authorities not to amend a Statement following an Annual Review (this Right of Appeal was introduced on 01.09.2010);
  • Decisions of Local Authorities to cease to maintain a child's Statement;
  • Where the Local Authority has made a Statement, but the parents disagree with its content;
  • Where the Local Authority refuses to change the school named on the Statement.

The SEND Tribunal can also hear cases on the following matters relating to Disability Discrimination:

  • Decisions relating to admissions;
  • Decisions relating to education and associated services (namely, all aspects of school life and teaching);
  • Decisions relating to exclusions.

The Special Educational needs and Disability Discrimination Tribunal cannot hear cases on any other matter besides those mentioned above. SEND Tribunal proceedings are judicial proceedings. If you decide to submit an appeal, the panel will ordinarily be comprised of 3 people. The Chairperson is a lawyer and carries the status of a County Court Judge. The appointment is made by the Judicial Appointments Commission. The other Panel Members will be lay members but will have expert knowledge of Special Educational Needs. The Tribunal is completely independent - it is in no way bound by any decision or policy of a Local Authority, a school or parents.

Is it advisable to represent myself at a Special Educational Needs and Disability Tribunal hearing?

It is ultimately up to you whether you represent your own case or seek professional representation. There is no legal requirement either way, and it is certainly not the case that Tribunals prefer parents to represent themselves. Parents are entitled to represent themselves if they wish but should be aware that Local Authorities are represented either by an Officer of the Authority, a solicitor usually from the Local Authority's Legal Department or a specialist Barrister in the field of education law on the basis that is extremely productive in terms of outcome. Our experience suggests that the more expensive the provision sought by the parent, the more effort the authority will make in contesting the provision sought by the parent. Expensive placements are rarely straightforward appeals. Our experience suggests a direct relationship between the cost of teh provision sought and the effort with which the Local Authority will contest the appeal. The former President of the SENDIST Tribunal, His Honour Judge Simon Oliver, has publicly commented on the fact that unrepresented parents generally have difficulties presenting their own cases, due to the complexities involved, and often find the Tribunal process very daunting. On this point, Brian Lamb OBE, the chairman of the Special Education Consortium and author of the Lamb Inquiry into Special Educational Needs and Parental Confidence (a government enquiry) commented on 19th January 2010:

“Unrepresented parents are unable to properly handle the tribunal system......”

The SEND Tribunal hearing is ultimately a formal judicial process, work is done on the basis of evidence and complex law and the presence of solicitors and barristers, especially those who specialise in education law, who will fight your corner and apply their knowledge and experience, can make a massive difference in terms of prospects of success. You may feel more confident if you have some help and moral support and are able to match the Local Authority's firepower with your own. All judicial systems are evidence based and in most cases Local Authority cases will be supported by evidence from their own Educational Psychologists and NHS Therapists and in some cases lawyers (solicitors and barristers) will present the Authority's case against the parent.

Writing to your MP

Such correspondence generally will not do any harm. However, an MP is elected to central government as opposed to local government and therefore has no real practical role to play in individual decisions made by the Local Authority with regard to education. Whist he or she might be able to exert some pressure on your behalf, this will not necessarily change anything.

Choosing a Solicitor

If you intend to use a solicitor, then you should certainly choose one that specialises in Education Law. In terms of lawyers, the day of the all-rounder is long gone. As in medicine, where you would not expect a consultant in rheumatology to undertake brain surgery, you would not expect a conveyancing specialist or a personal injury lawyer to conduct a Special Educational Needs and Disability Tribunal (SENDIST) appeal.

When choosing a solicitor for an Education Law issue, the questions you should be asking are:

  • How many appeals to the SEND Tribunal does the practice undertake per year?
  • What is the success rate for the practice?
  • Does the firm actually specialise in education law, or is this one practice area amongst many?
  • Does the practice come independently recommended by, for example, a parents or support group?
  • What level of experience do the individual practitioners have in education law?
  • Does the Practice ever undertake work for Local Authorities?

Whilst instructing a specialist solicitor can be expensive, it is important to bear in mind the comparative nature of costs. Education is an expensive commodity, and if you were to calculate the number of years you child will be in education by the sum of money to be paid each year in school fees and other related costs, the sum reached is often in the region of £200,000 - £300,000, although it can reach over £750,000 in very complex cases. The price spent on a specialist solicitor to ensure your child receives an adequate standard of education will be, relatively speaking, far more modest. If you were injured in a car accident, you would expect to use a highly specialised team of personal injury lawyers and good expert evidence to obtain a similar level of damages. The same principle can be applied in the education context: to achieve a desired result, in the long run it pays to engage with specialist lawyers and experts which will improve your prospects of success.

SEN Legal's success rate in the period 1st January 2013 to 31st December 2013 was 96.0% (this figure includes appeals conceded by the Local Authority before the hearing).