What should I do if I think my child has special educational needs?
If your child is of school age, the first port of call if you are concerned should be your child’s class teacher, the school SENCo (Special Educational Needs Co-Ordinator), or the Head Teacher at the school. The school will have an SEN policy which should be easily located on the school’s website.
If your child is not yet of school age, either the pre-school or Nursery will be able to help you. Alternatively, contact your Health Visitor or GP.
If you feel that your child’s school/pre-school/Nursery is unable to support your child, you can ask your Local Authority to carry out an Education, Health & Care Needs Assessment.
At school, the Head Teacher or SENCo could make an application to the Local Authority for this assessment to be carried out.
What is an Education, Health & Care Needs Assessment?
An Education, Health & Care Needs Assessment is an assessment that is carried out if the Local Authority feels that your child may have special educational needs which would be best supported by an Education, Health & Care Plan (EHCP).
The Local Authority (LA) will take into account whether or not your child’s school is able to support your child’s needs from the resources that school has available and where it feels that extra resources may be needed. The Local Authority will then assess your child’s education, health care and social care needs. The decision whether to make an EHCP at the end of the assessment will depend on whether it is necessary for SEN provision to be made via an EHCP.
Who would assess my child?
The Local Authority would arrange for assessments to be made of your child by relevant services which must include (amongst others) an Educational Psychologist, information from health, information from social care, and any other person the LA thinks appropriate.
You may wish to instruct your own experts to assess your child as well as the Local Authority assessments. The Children’s Legal Practice has a list of recommended experts available for our clients.
What role would I as a parent have in the Education, Health & Care Needs Assessment?
The LA must seek information from the parent or young person as part of the assessment. If your child is under 16, you would have an integral role and should be kept fully appraised of the process by the Local Authority who must take your views into account.
If your child is over 16, they will be considered as a young person and, where your child is able to make their own decisions, their views will be considered as most important although yours can still be taken into account. If, however, they are unable to make their own decisions, you would be able to make decisions for them having taken into account their views as much as possible. An assessment of the young person may be necessary to decide whether they have capacity to make their own decisions.
How long does an Education, Health & Care Needs Assessment take?
The Local Authority has 6 weeks from when they receive the application for an assessment to decide whether an assessment needs to be carried out. If they decide to carry out this assessment, it must be completed within 10 weeks from that decision, meaning the total process from applying for the assessment to the completion of assessment should take no more than 16 weeks.
At the end of the assessment process, the Local Authority will decide whether or not to issue an Education, Health & Care Plan for your child.
What do I do if the Local Authority refuse to carry out an Education, Health & Care Needs Assessment of my child?
If the Local Authority refuse to carry out the assessment, you have a right to appeal to the Special Educational Needs & Disability Tribunal.
What is an Education, Health and Care Plan?
An Education, Health and Care Plan is a legal document which sets out your child’s special educational, health and social care needs and the provision required to support those needs. Once in place, the Local Authority is under a duty to deliver the educational provision set out in the document, the Health Service is under a duty to provide the health care, and the Social Services have a duty to deliver the social care provision.
How long will it take for an Education, Health and Care Plan to be issued?
The Local Authority have four weeks from the date of the decision to issue an Education, Health and Care Plan to do so. This makes a total timeframe of 20 weeks from the date of applying for an EHC Needs Assessment to the date of the issue of the Education, Health and Care Plan, where the Local Authority deem an EHC Plan to be necessary.
What do I do if the Local Authority refuse to issue my child with an Education, Health & Care Plan?
If the Local Authority refuse to issue an EHCP, you have a right to appeal to the Special Educational Needs & Disability Tribunal.
If the Local Authority issue an Education, Health & Care Plan but I am unhappy with the contents, what should I do?
If you are not satisfied with the contents of the Education, Health and Care Plan (for example, the description of needs, the provision, or the school named), you have a right to appeal to the Special Educational Needs & Disability Tribunal.
My child has a Statement of Special Educational Needs. What is the difference between a Statement of Special Educational Needs and an Education, Health and Care Plan?
Education, Health & Care Plans were introduced in September 2014 to replace Statements of Special Educational Needs, which are being phased out with a view to all documents being converted by April 2018. Both documents set out the needs of your child, the provision necessary to meet those needs, and the school that has been identified to do this. The documents also include the health and social care needs and provision required.
The main differences between an EHCP and a statement are that the views of the parent, child and young person are given more consideration in the EHCP process. What’s more, the educational, health and social aspects have separate sections in an EHCP, with health care provision being the responsibility of the Health Authority. EHCPs can provide for children and young people up to the age of 25 and, as a result, EHCPs also cover further educational settings.
Will my child’s statement be converted to an Education, Health and Care Plan?
Your child’s statement can be converted to an EHCP following a Transfer Review (sometimes also known as a Transition Review). A Transfer Review takes place where the local authority carry out an Education, Health and Care Needs Assessment and consider the up-to-date information about the child/ young person, the views of the parent/child and young person.
Your Local Authority will follow a transfer process and will usually publish information about their process on their website.
It is not guaranteed that your child’s statement will be converted to an EHCP. Following the Transfer Review, the Local Authority can decide that an EHCP is not necessary – but they would need a good reason not to convert the statement to an EHCP.
While the Transfer process is carried out, your child’s statement will remain in place.
If the Local Authority decides not to transfer your child’s statement to an EHCP, your child’s statement will also cease and the Local Authority must inform you of this.
What do I do if the Local Authority decide not to convert my child’s statement to an Education, Health and Care Plan?
If the Local Authority decide not to convert your child’s statement to an EHCP, you have a right to appeal this decision to the Special Educational Needs and Disability Tribunal.
How do I find a school able to meet my child’s needs?
There is a range of provision available for a child with Special Educational Needs, including maintained and non-maintained schools, mainstream schools, specialist units within mainstream schools, special schools and residential schools.
It is important that you understand the complexity of your child’s needs and look at the following documents provided by schools to gain a better picture of how suitable the school is.
School prospectus, Ofsted reports, school profiles, the school’s achievement in attainment tables, the school’s SEN policy, behaviour policy, complaints procedure and school magazine are all useful.
After considering the above documents, it would be advisable to request a visit to the school/s of your choice, ensuring that you see the right person who can answer your questions. Ideally, this will be at a time when you can see structured lessons as well as unstructured playground time, as both will be helpful in gaining a better picture of issues such as wheelchair accessibility and ease of use at times of class changes. This will also give you a good idea of noise levels, physical movement and lighting.
Your child is also likely to be invited for an assessment from any school who may be able to meet their needs before a place is offered.
You may want your child to be assessed by an Educational Psychologist, who would be aware of what local schools can offer and could make recommendations to you in relation to your child’s needs.
The Children’s Legal Practice has a list of recommended experts available to our clients.
What is the role of the Special Educational Needs and Disability Tribunal?
The Special Educational Needs and Disability Tribunal is a specialist Tribunal whose function is to hear appeals by parents/young people against decisions of Local Authorities relating to the child/young person’s special educational needs.
Their contact details are:
First-tier Tribunal (Special Educational Needs and Disability)
1st Floor, Darlington Magistrates Court
Telephone: 01325 289 350
Fax: 0870 739 4017
What can I appeal?
You can appeal the following decisions made by the Local Authority:
- Their refusal to carry out an EHC assessment
- Their refusal to issue an EHCP following an EHC assessment
- Where an EHCP has been issued but you do not agree with the contents relating to the description of your child’s special educational needs, the provision to meet those needs, or the school/educational setting stated in the EHCP
- You can appeal following each annual review for example if the Local Authority have refused to amend the EHCP despite your disagreement with its contents
- Their decision to cease your child’s statement/EHCP
The Tribunal is also still dealing with some appeals in relation to Statements of special educational needs and hears disability discrimination cases in respect of schools.
How long would an appeal take?
From beginning to end, depending on the type of case, the process of making an appeal to SEND can take up to five months
What is the process for an appeal?
- You have two months from the date of the Local Authority’s decision letter to appeal, or alternatively one month from the date of a medication certificate, whichever is the latter.
- You apply to appeal together with your reasons for appealing (that you disagree with the decision of your Local Authority), explain the reasons why you disagree, and enclose any supporting information or evidence with your application to appeal.
- The appeal will be registered within 10 working days of receipt of your paperwork and you will be informed by SEND that your appeal has been registered. You will also be informed of the date of the final hearing, along with directions setting out time limits for sending further documents.
- SEND will then notify the Local Authority that an appeal has been registered, as well as providing them with directions for submitting further documents.
- The Local Authority must respond to the appeal within 30 working days of a copy of the appeal notice being sent.
- There will be a deadline for any further evidence to be submitted.
- If the case has not settled in the interim, it will go to hearing.
The relevant forms can be found on the SEND website
Mediation must be considered before submitting any appeal in respect of an EHCP. The Local Authority will provide you with information in relation to the process in their decision letter. You must contact the Mediation service within two months of receiving the decision letter and in some circumstances your right of appeal may be extended beyond the initial two month period.
Will I need to instruct any expert witnesses?
You do not need to bring any witnesses at all, but having expert witnesses who have assessed your child will strengthen your case (for example an Educational Psychologist, Speech and Language Therapist, or Occupational Therapist). If you wish to bring more than three witnesses, you will need to request permission from SEND.
How much does an appeal cost?
SEND do not charge for their service. Costs incurred vary depending on the circumstances and are likely to include those for legal assistance and the instruction of experts to carry out assessments.
What happens at an appeal hearing?
You will be shown into a hearing room and will sit at a table facing the tribunal panel. The Tribunal Judge will give an introduction and explain the procedures to be followed and the issues to be considered. The parties will introduce themselves.
Each issue will be addressed separately and you will be able to express your view and evidence in respect to each issue ,with the opportunity to raise any additional issues at the end of the hearing.
When all the issues have been covered, if you wish to make comments to summarise your appeal you will have the opportunity to do this should any further issues come to mind having heard the Local Authority evidence.
SEND have a DVD to give you an idea of what happens at a hearing, you can telephone them on 01325 289 350 or email: firstname.lastname@example.org to request this. Alternatively, the clip can be seen on YouTube by typing into the search box “Special Educational Needs Tribunal Hearing”
Who can attend an appeal hearing?
Although you do not have to attend the hearing, it is helpful if you do as the panel will want to hear your views and you may also want to take the opportunity of asking questions of the Local Authority and/or their witnesses. Whether or not you attend the hearing yourself you can have a representative at the hearing but you must let SEND know that this is your intention on the attendance form sent to you when the appeal was registered. Your child can come to the hearing and can also give evidence if they want to but it is unlikely that the child will stay for the full hearing so it will be necessary for you to bring someone with you to care for your child when they are not in the hearing.
What decisions can the SEN Tribunal make?
The SEN Tribunal can direct the Local Authority to:-
Start the assessment/reassessment process
Make an EHCP
Change a statement/EHCP
Transfer a statement to an EHCP
Change the school named in line with the parents’ wishes
Continue a statement/EHCP
Cancel a statement/EHCP
Is the final decision made on the day of the hearing?
The panel do not make the final decision on the day of the hearing. You will receive the decision and reasons by post within 10 working days of the hearing.
If the Tribunal decide in my favour can I recover my costs from the Local Authority?
You will only be able to recover costs from the Local Authority if they have behaved unreasonably. This is quite a high test and costs orders are rarely made in Tribunal cases.