What is the definition of special educational needs? What acts should SENCos be up to date on? This issue of SENCO Week serves as a brief but essential legal summary for SENCos

A teacher’s legal duties used to be summarised as being ‘in loco parentis’ – literally acting as a responsible parent. Nowadays, however, it’s slightly more complicated. With more legislation in place to ensure equal rights and to protect vulnerable children, you need to be aware of the law and understand where conflict can arise.

The key laws dealing with special educational needs and disability are the 1996 Education Act and the 2001 SEN and Disability Act (SENDA). Areas with legal implications particularly relevant to SENCOs include:

  • disability discrimination
  • formal statutory assessment
  • failure to arrange provision outlined in statement of special educational needs
  • tribunal appeals and independent appeal panels
  • home tuition
  • children with medical needs
  • school admissions
  • school exclusions.

In summary, you need to be sure that:

  • There is equality of opportunity for all children in the school (this may not always mean the ‘same’ opportunities, but must mean opportunities of equal value and quality).
  • There is an accessibility plan.
  • Exclusion procedures are followed correctly.
  • The admissions policy does not discriminate against children with SEN and/or disability.
  • The Code of Practice is followed, with an effective system of identification and a staged response to meeting individual needs (See box below).
  • Statements of SEN are being adhered to. The law dealing with assessment and statementing has changed very little since 1981. Local authorities (LAs) should identify, assess and, where necessary, provide statements for pupils with the most severe learning difficulties. Once a statement has been issued, the LA has a clear and non-delegable duty under the Education Act 1996 to arrange the provision in that statement. Parents have a right to be involved in arrangement of provision, and LAs have the chief responsibility for dialogue with parents over the entitlement. Since Removing Barriers to Achievement in 2004, however, there has been a longstanding DCSF agenda to delegate SEN responsibilities to schools and reduce the number of statements. Many LAs now delegate as much of the SEN budget to schools as possible to give schools more flexibility in making SEN provision. This results in fewer statements, and less detail on provision in the statements that do exist, shifting responsibility for managing parental expectations to schools. Lack of detail on a statement can mean that intervention and support is open to interpretation, especially in respect of the amount of TA support to be provided – check this with the LA if you are in doubt.
  • There is a school policy for children and young people with medical needs.
  • Schools have to have a policy on the management and administration of pupils’ medicines and supporting individual pupils with medical needs. Access to Education for Children and Young People with Medical Needs sets out the minimum standards for the education of children unable to attend school because of illness or injury. Managing medicines in schools and early-years settings (DfES/Department of Health, 2005) provides advice for schools and their employers to help in the development of such policies. Visit www.teachernet.gov.uk/wholeschool/healthandsafety/medical/ for details.
The 2001 SEN and Disability Act strengthened the right of children with special educational needs to go to mainstream schools and early education settings. The legal framework for inclusion means that:

  • Pupils with special educational needs, but without a statement of special educational needs, must be educated in mainstream schools.
  • Pupils with a statement should be educated in a mainstream school, unless this is against the wishes of the child’s parents or is incompatible with the efficient education of other children.

Inclusive Schooling – Children with special educational needs provides guidance about the inclusion framework. It sets out the steps that schools and local authorities can take to make sure that the education of children with special educational needs is compatible with the efficient education of other children. Local authorities and schools must have regard to the guidance, which defines inclusive schools as having:

  • an inclusive ethos.
  • a broad and balanced curriculum
  • early identification of barriers to learning and participation
  • high expectations and suitable targets for all children.

Definition of Special Educational Needs

The legal definition of special educational needs is set out in the 1996 Education Act. Children have special educational needs if they have a learning difficulty, which calls for special educational provision to be made for them.

Learning Difficulty
Children have a learning difficulty if they:

  • have significantly greater difficulty in learning than the majority of children of the same age
  • have a disability which prevents or hinders them from making use of educational facilities of a kind generally provided for children of the same age in schools in the area
  • are under compulsory school age and fall within the definition at (a) or (b) above or would so do if special educational provision was not made for them

Special Educational Provision (SEP)
Special educational provision means:

  • for children of two or over, educational provision additional to, or otherwise different from the provision made generally for children of their age in ordinary schools in the area
  • for children under two, educational provision of any kind.

Some legal firms now specialise in education law, handling appeals to SENDIST (the Special Educational Needs and Disability Tribunal) and DDA (Disability Discrimination Act) claims; appeals to the High Court and Court of Appeal against SENDIST decisions; school exclusion hearings and school admission appeals. Their clients are mainly parents and grandparents of children with a range of difficulties and disabilities. There is more of a ‘litigation culture’ now than ever before, with cases also being brought before court that accuse schools of failing to fulfil their ‘duty of care’ in meeting an individual’s needs, causing long term damage to health and well-being and life/work prospects.

It’s worthwhile keeping a record of support and intervention for individuals, especially in cases where parents express dissatisfaction from the outset. You need to be able to show that you identified and took steps to meet a child’s needs, and justify your course of action.

SEN News
Access for disabled children and young people to extended schools and children’s centres: a development manual is a new guide designed to support the inclusion of disabled children in children’s centres and extended schools.

Funded by the DCSF, it brings together information for those managing and working in children’s centres, extended schools, local authorities and voluntary organisations working with them. It also includes useful case studies and a CD of resources. http://www.ncb.org.uk/Page.asp?originx_802vl_3790575363673l75d_2008491812e

This e-bulletin issue was first published in December 2008

About the author: Linda Evans is the author of SENCO Week. She was a teacher/SENCO/adviser/inspector, before joining the publishing world. She now works as a freelance writer, editor and part-time college tutor.