Disputes about special educational needs in England
How to challenge decisions about special educational needs in England.
There are a number of specialist charities that offer online or telephone help on special education needs and disability (SEND) issues:
There are a number of specialist charities that offer online or telephone help on special education needs and disability (SEND) issues:
- IPSEA: The Independent Provider of Special Education Advice which offers free and independent legally based information, advice and support.
- SOS!SEN: A charity that supports parents and cares of children with special educational needs and disability.
- Coram Children’s Legal Centre: experts in Education Law, helping clients with casework advice and assistance.
Every local area (local authority or borough) has an Independent Advice and Support Service (IASS) that can be found in the link below:
Individuals considering making a formal appeal to the First-tier Tribunal, which handles appeals against local authority decisions on special educational needs, (more on this below) may wish to get specialist advice.
What can parents or carers do if they feel their child is not getting the special educational provision they need?There is statutory guidance on resolving disagreements on SEND provision and the contents of Education Health and Care (EHC) plans (documents that sets out a child or young person’s formally assessed special educational needs, the special educational and other provision required, and the school or college placement) in part 11 of the Department for Education’s SEND code of practice: 0-25 years.
There are several pathways for parents and carers who haven’t been able to resolve a SEND issue by talking to the school or college:
- asking the local authority to carry out a statutory EHC needs assessment, re-assessment or early review
- complaining to the local authority
- mediation
- bringing an appeal to the First-tier Tribunal on Special Educational Needs and Disability
- complaining to the Secretary of State for Education
- complaining to Ofsted (if there is a wider problem with SEND provision at a school or other provider)
- complaining to the Local Government Ombudsman (LGO)
- judicial review
The most appropriate route(s) will depend on the details of the case; there’s more in the section below about what the Tribunal can consider.
For some types of appeal to the Tribunal, parents, carers or young people will be required to show proof of having contacted a mediation adviser before appealing.
The charity, IPSEA, has a range of resources and template letters for addressing problems with SEND provision.
What can be appealed to the Tribunal?Only certain SEND decisions can be appealed at the Tribunal. These are:
- refusal to carry out an EHC needs assessment or refusal to carry out a reassessment
- refusal to issue an EHC plan following an assessment
- refusal to amend an EHC plan after a review or reassessment
- a local authority deciding to stop maintaining an EHC plan
Appeals can also be made about the contents of an EHC plan, specifically:
- the child or young person’s special educational needs and how they are described in the plan
- the special educational provision set out in the plan to meet the child’s needs
- the school or setting that the local authority believes the child should attend (the ‘named’ school or placement school)
- failure to name any school or setting in the EHC plan
- For children of compulsory school age; “the 31 December, 31 March or 31 August following the child’s fifth birthday until the last Friday in June when the child will be 16 by the end of the summer holidays”, the parent or carer will have the right of appeal.
- Young people who are over compulsory school age may bring their own appeal, provided they have mental capacity.
Decisions of the First Tier Tribunal are binding, although the Upper Tribunal can consider appeals on points of law.
The First Tier Tribunal has specific powers under the Children and Families Act 2014, as amended. It may:
- dismiss the appeal
- order the local authority to carry out an assessment
- order the local authority to make and maintain an EHC plan
- order the local authority to maintain a plan with amendments
- order the local authority to reconsider or correct a weakness in the plan
Tribunal appeals must usually be registered within two months of the local authority sending the relevant decision notice.
A constituent may have to talk to a mediation adviser before they can appeal. The mediation adviser will provide them with a mediation certificate. They have one month to appeal from the date of the certificate. (Appeal an education, health and care (EHC) plan decision: Before you appeal)
In exceptional circumstances the Tribunal can extend this deadline.
The wait for a hearing may be many weeks or months it will depend on the volume of cases the Tribunal is dealing with and the type of case. What happens after I submit my appeal?, (IPSEA) provides useful information on this.
Full information on the process is available in How to appeal a special educational needs (SEN) decision (SEND37)
Can schools exclude children because they can’t meet their special education needs?No, children can’t be excluded from school because the school can’t meet their needs. Children and young people can only be excluded from school for disciplinary reasons.Statutory guidance for schools and local authorities on school exclusion can be found in the Department for Education’s (DfE) publication on school exclusion.
However, the Timpson Review of School Exclusion (PDF), published in May 2019, highlighted “longstanding trends that children with SEN are more likely to be excluded, both for a fixed period and permanently, than those who do not have SEN”.
The DfE has expanded its guidance to give more detailed procedures for schools on handling exclusions and suspensions of children with SEND. In part 3 of the guidance there is a section explaining ‘Off-rolling and unlawful exclusions’ which states:
It would also be unlawful to exclude a pupil simply because they have SEN or a disability that the school feels it is unable to meet, or for a reason such as: academic attainment/ability; or the failure of a pupil to meet specific conditions before they are reinstated, such as to attend a reintegration meeting. If any of these unlawful exclusions are carried out and lead to the deletion of a pupil’s name from the register, this is known as ‘off-rolling’.
The Department of Education has also published A guide for parents on school behaviour and exclusion. On pupils with Special educational needs or disability it advises:
The law does not prevent your child from receiving a sanction for misbehaviour, but schools do have a legal duty, under the Equality Act 2010, not to discriminate against your child because of their disability.
And under ‘reasonable adjustments’:
A school should not assume that because your child has SEND, it must have affected their behaviour on a particular occasion. Schools should consider whether your child’s SEND has contributed to their behaviour, and whether it is therefore fair and lawful to sanction them because of this.
Schools should think about any triggers of misbehaviour so they can support all pupils with SEND to behave well.
Sometimes, pupils with a disability will need reasonable adjustments made to a rule or type of sanction.
Further InformationAbout the author: Laura Abreu is a researcher in the social policy section of the House of Commons Library.
DisclaimerThe Commons Library does not intend the information in this article to address the specific circumstances of any particular individual. We have published it to support the work of MPs. You should not rely upon it as legal or professional advice, or as a substitute for it. We do not accept any liability whatsoever for any errors, omissions or misstatements contained herein. You should consult a suitably qualified professional if you require specific advice or information. Read our briefing for information about sources of legal advice and help.